High Court Cannot Control Day To Day Affairs Of Trial Court In Exercise Of Its Reversional Power: Delhi High Court

The Delhi High Court has observed that a High Court, in exercise of its revisional power, cannot be seen as controlling the day to day affairs of the Trial Court.

The Court was dealing with a plea challenging an order dated 2nd May, 2022 whereby the Trial Court had rejected the request of the petitioner for appointment of Local Commissioner.

Justice Dinesh Kumar Sharma was of the view that due to pendency of matters in the courts, the practice of appointing local commissioner for recording of evidence is being encouraged for the expeditious disposal of the matters.

However, the Court added, that the trial Courts while issuing the commission has to take into account, the peculiar facts and circumstances of the case.

"The Trial Court is the best judge to decide on these issues as the trial is being conducted there. This Court in exercise of its revisional power cannot be seen as controlling the day to day affairs of the Trial Court," the Court observed.

The Court further added that if there is consent of the parties, the courts are more inclined to issue the commission. However, if one of the parties is not agreeable then, the courts have to see the attendant facts and circumstances of the case.

"In such a case, if both the parties are not agreeable, the general experience is that the Local Commissioner faces lots of difficulties in recording of evidences," the Court said.

The counsel for the respondent had raised strong objection for evidence being recorded through Local Commissioner. It was also noted that the respondent was not willing to bear 50% of the fee of the Local Commission.

The counsel for the petitioner stated that in case Local Commissioner is not appointed, it may take 10 years for disposal of the petition. Therefore, it was argued that there was no justified ground for the respondent for not agreeing to appoint the Local Commissioner.

The impugned order was challenged on the ground it was passed merely on the whims and fancies and that the request of appointment of Local Commissioner was rejected without any basis.

The Court noted that power to appoint the Local Commissioner is conferred under Order XVIII Rule 19 CPC r/w Order XXVI Rule 4A, as per which, court may issue commission for recording evidence of (i) Any person resident beyond the local limits of the jurisdiction; (ii)  Any person who is about to leave such limits before the date of which he has to be examined in Court; and (iii) Any person who is in the service of Government cannot attend without detriment to the public service .

"Thus, the bare perusal of law makes it clear that the discretion to appoint Local Commissioner may be exercised only in the cases as enumerated under the law," the Court observed.

While noting that the Trial Court had taken into account the peculiar facts of the case, the Court did not find any ground to interfere in the impugned order.

Accordingly, the petition was dismissed.

Case Title: NIKHIL GUPTA v. TANU GUPTA

Citation: 2022 LiveLaw (Del) 623

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