Appointment Of Local Commissioner Cannot Be Sought By One Party To Marshal Better Evidence Against Another: Delhi High Court

In an application seeking appointment of a Local Commissioner (LC), the Delhi High Court on Wednesday held that such appointments cannot be sought by parties to equip themselves with ‘best evidence’ in their case against others.

Speaking of Order 26 Rule 10A CPC which empowers a court to issue commissions, Justice C. Hari Shankar said that the provision was invocable only where the court believed that (i) determination of issue(s) in the suit involved scientific investigation, (ii) such scientific investigation could not be conveniently conducted before the court and, (iii) it was necessary or expedient in the interests of justice to issue the commission to conduct the scientific investigation.

“Cumulative satisfaction of these three criteria is the sine qua non for Order 26 Rule 10A to apply”, the court said.

It is significant to note that the first criterion was characterized as a substantive requirement, and the remaining two discretionary.

The judgment came to be rendered in a suit filed by the plaintiffs, alleging that the PCAs (Preconditioned Air Units) manufactured by the defendants infringed their registered patent (the suit patent).

Advocate Pravin Anand appeared for the plaintiffs and argued that the allegation of infringement had not been made in vacuo. Rather, the features of defendants’ PCAs were mapped with the claims in the suit patent, based on defendants’ brochures, instruction manual and RFP.

He further submitted that the court had power to grant the prayer under statutory provisions, including Order 26 Rule 10A CPC, as scientific investigation would become necessary. It was also stated that the defendants’ PCA machines were installed at Airports and could not possibly be examined in manner other than that suggested by the plaintiffs.

On the other hand, the defendants contended that the plaintiffs intended a roving and fishing enquiry and their prayer amounted to an abuse of process. They imputed lack of bona fides and averred that the plaintiffs could not be allowed to use the court to procure additional evidence in support of their case.

Additionally, it was highlighted that the law did not permit such an exercise to be undertaken. It was informed that mapping of claims had been carried out thrice.

Advocate Rajagopal, appearing for defendant Nos.1 to 3, also submitted that if the court deemed appointment of an LC necessary at a subsequent stage, it could very well exercise the power under Order 26 Rule 10 CPC.

After perusing the record and hearing rival submissions, the court noted that it was an admitted case of the plaintiffs that a detailed mapping of the claims had already been carried out and their prayer was only intended at confirming the aspect of infringement of the suit patent based on physical assessment.

Observing that “…the local commissioner, as per the prayer in the application, is required to inspect the defendants’ PCA and to prepare a technical report, mapping the claims of the PCA to the claims in the suit patent”, it remarked that Order 26 Rule 10A CPC was intended to assist the Court and not any party.

Insofar as the plaintiffs had referred to Rule 5(i) and (iii) of the DHC Patent Rules, as per which a patentee alleging infringement can seek appointment of LC for “inspection, etc.”, the court explicated that the word “etc.” had to be understood noscitur a sociis or ejusdem generis with the word “inspection”. That is, any purpose circumscribed by “etc.” would have to take color from “inspection”.

In the facts of the case, it held that “etc.” could not be extended to cover the plaintiffs’ prayer.

In support of their case, reliance was placed by the plaintiffs on decision of a co-ordinate Bench of the Court in Sotefin SA v. Indraprastha Cancer Society. However, Justice Shankar distinguished the same by noting that it was a case where specific questions were framed during arguments, for which a decision regarding necessity of scientific investigation was consciously taken.

Arriving at the decision to dismiss plaintiffs’ application, the court opined, “Order XXVI Rule 10A of the CPC does not empower the court to issue a commission in order to equip the plaintiffs with “best evidence” … Permitting such an attempt would amount to the Court acting in aid of one of the parties to litigation, by aiding in obtaining of evidence only to support the case that the party seeks to set up, which would be completely destructive of the most basic principles of judicial independence”.

Furthermore, it agreed with the defendants’ submission that once plaintiffs had themselves claimed to have adduced sufficient evidence to establish infringement, and the material on which mapping was done was not denied by defendants, there was no justification for appointment of an LC as sought.

Interpreting the language contained in Order 26 Rule 10A CPC, it was underscored that the court could not, without due justification, set a local commission in place to make enquiries.

In closing, a note of caution was signed as follows: “The court has, for its part, to remain acutely aware of the fact that the report of such a Commissioner, were he to be appointed, would constitute “evidence”. The line between directing a scientific investigation to aid in determination of the questions arising in the case, and acting, even unwittingly and in the absence of any ill intent of the applicant, as an agent to procure evidence to support the case that it seeks to set up is at times thin, and the Court has to be cautious not to overstep it.”

Mr. Pravin Anand, Ms. Vaishali Mittal, Mr. Gursimran Singh Narula and Mr. Siddhant Chamola, Advocates appeared for the plaintiffs

Mr. Saikrishna Rajagopal, Mr. Himanshu Bagai, Ms. Garima Sawhney, Ms. Deepshikha Sarkar and Ms. Bhanu, Advocates appeared for defendant Nos.1 to 3

Ms. Bitika Sharma, Mr. Sudeep Chatterjee, Mr. Rohan Swarup, Mr. Rakesh Karela, Mr. George Vithayathil and Mr. Tanya Arora, Advocates appeared for defendant No.4

Case Title: ITW GSE APS & Anr. v. Dabico Airport Solutions Private Ltd & Ors.

Citation: 2023 LiveLaw (Del) 1047

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