N. G. Nandi,j. ( 1 ) THE applicant/defendant No. 1 raising the question of validity prays for constituting a large Bench (Full Bench) for striking down the nonobstante clause in Chapter X-A (Commissions) in the Delhi High Court (Original Side) Rules vide I. A. No. 875/97. ( 2 ) IN order to appreciate the contention in this regard, it would be necessary to state few facts. Civil Suit No. 27/79 came to be filed by the plaintiff M/s. Kharaiti Lal and Sons against defendant No. 1-Hari Singh and others for the specific performance of agreement dated 9. 9. 1978 for the saleof immovable property. In the said suit, the plaintiff was cross-examined by defendant No. 1 on22. 9. 1989,6. 11. 1990,11. 2. 1993, 12. 2. 1993, 18. 8. 1993, 19. 8. 1993, 20. 8. 1993 and 3. 9. 1993. The order dated 3. 9. 1993 suggests that this Court found that no further opportunity should be granted to defendant No. 1 for further cross-examination of the plaintiff and the case was directed to be listed on 2. 11. 1994 to 4. 11. 1994 for the evidence of defendant No. 1. By IA. 12146/91, the defendant sought amendment in the issue. Vide order dated 7. 4. 1995 the application came to be dismissed observing that the proposed issue is partly covered intheorderdated20. 11. 1991 inl. A. 8062/89whereastheremaining part of the proposed issue is included/covered in existing Issue No. 2. The order dated 3. 9. 1993 whereby further opportunity to cross-examine Public Witness Public Witness 2 was declined to defendant No. 1 was carried in Letters Patent Appeal No. 75/93 and C. M. 3276/ 94 and vide order dated 16. 1. 1995, D. B.-I of this Court dismissed the appeal as incompetent. On 9. 5. 1995, defendt No. 1 through his Counsel Mr. D. D. Singh prayed for adjournment and the matter was adjourned to 10. 5. 1995 on which date defendant No. 1 prayed for adjournment through his son, identified as such by Mr. D. D. Singh, Counsel for defendant No. 1. The matter was then adjourned to 15. 5. 1995 for evidence of defendant No. 1 and other witnesses, if any. On 15. 5. 1995, the evidence of defendant No. 1 was recorded in part and the case was adjourned to 8th November, 1995. On 8. 11. D. D. Singh, Counsel for defendant No. 1. The matter was then adjourned to 15. 5. 1995 for evidence of defendant No. 1 and other witnesses, if any. On 15. 5. 1995, the evidence of defendant No. 1 was recorded in part and the case was adjourned to 8th November, 1995. On 8. 11. 1995 defendant No. 1 prayed for adjournment contending that he has pus formation in both the ears. Though the ground was found not sufficient for granting adjournment, one day s time was granted. On 9. 11. 1995, defendant No. 1 submitted a medical certificate through Mr. Gurdeep Singh. Considering the medical certificate, the request for adjournment was declined and the matter was ordered to come up on 10. 11. 1995 for remaining evidence of defendant No. 1. On 10. 11. 1995, Mr. Gurdeep Singh, son of defendant No. 1 produced the copy of medical certificate. Defendant No. 1 was directed to remain present on 13. 11. 1995. On 13. 11. 1995, Mr. Gurdeep Singh son of defendant No. I pointed out that according to the medical certificate dated 8. 11. 1995, defendant No. 1 was advised 7 days rest and computing 7 days from 8. 11. 1995, it would be 14. 11. 1995 hence defendant No. 1 was directed to remain present on 15. 11. 1995 for recording his further evidence. On 15. 11. 1995, Mr, A. K. Marwaha, Advocate was present for the plaintiff and Mr. Naubat Rai, Advocate for defendant No. 1 with defendant No. 1 remained present and following order came to be passed : "15. 11. 1995 Present: Mr. A. K. Marwaha for the plaintiff. Mr. Naubat Rai for defendant No. 1 with defendant No. 1 in person. S. No. 27/79 This is an old suit wherein the evidence of defendant No. 1 inexamination-inchief, has been recorded in part. It has been agreed by the Counsel for the plaintiff and defendant No. 1, who is presenting person, that the remaining evidence, namely remaining examination-in-chief and cross -. examination of defendant No. 1, be recorded by the Court Commissioner for the purpose. Looking to the fact that it is an old matter and that defendant No. 1 is a fairly aged person and also the health and medical evidence produced so far, on record of this case. examination of defendant No. 1, be recorded by the Court Commissioner for the purpose. Looking to the fact that it is an old matter and that defendant No. 1 is a fairly aged person and also the health and medical evidence produced so far, on record of this case. Shri Jag Ram Sharma, Joint Registrar of this Court is appointed as Court Commissioner to record the remaining evidence (examination-in-chief as well as cross-examination of defendant No. 1 ). Let plaintiff and defendant No. 1, in the first instance pay/deposit a sum of Rs. 5,000. 00 within a week in equal proportion, which would ultimately be the cost inthecause. Reportwithin3months. Parties to appear before the Commissioner on 4. 12. 1995. List on 12. 3. 1996. Nov. 15,1995, sd/- N. G. Nandi. J. After the passing of the above order, Mr. S. N. Marwaha, Sr. Advocate states that there is a D. B. decision of thisr Court that there can be no appointment of Local Commissioner for recording the evidence and the matter is pending consideration before the Supreme Court. In view of the above, till the next date, the operation of the above order is stayed. List before the Court on 27. 11. 1995. Let Counsel for the plaintiff intimate defendant No. 1 about the date of hearing being 27. 11. 1995. 756 Nov. 15,1995 sd/- N. G. Nandi,j. "on 27. 11. 1995, following order came to be passed. "27. 11. 1995 Present: Mr. A. K. Marwaha for the plaintiff. S. No. 27/79 The order dated 15. 11. 1995 for recording the evidence of Defendant No. 1, as observed in the said order, has been a consent order in this suit of 1979. In view of the judgment in FAO (OS) 167/95 by D. B.-I of this Court, the parties shall appear before the Local Commissioner appointedvide order dated 15. 11. 1995 for recording of the evidence of defendant No. 1 on 4. 12. 1995 at 2. 00 p. m. To belisted before the Court on 12. 3. 1996. Local Commissioner shall not part with the official record and shall not take thesameoutofthecourtpremises. ltisherebyclarifiedthattheplaintiffand defendant No. 1 in the first instance pay/deposit a sum of Rs. 5,000. 00 within a week from today in equal proporon as directed in order dated 15. 11. 1995. Nov. 27,1995 sd/- N. G. Nandi,j. "on6. 12. 1995,defendantno. 3. 1996. Local Commissioner shall not part with the official record and shall not take thesameoutofthecourtpremises. ltisherebyclarifiedthattheplaintiffand defendant No. 1 in the first instance pay/deposit a sum of Rs. 5,000. 00 within a week from today in equal proporon as directed in order dated 15. 11. 1995. Nov. 27,1995 sd/- N. G. Nandi,j. "on6. 12. 1995,defendantno. 1 filed the review application being R. A-39/95 praying to set aside the order dated 27. 11. 1995 appointing the Commissioner for the recording of his remaining evidence. During the pendency of the review petition defendant No. 1filed I. A. 272/97 and prayed for appointing/constituting larger Bench for striking down a portion of rules in the Delhi High Court (OS) Rules in Chapter X-A (Commissions), questioning the validity of the said new rule. On 10. 1. 1997 defendant No. l,who was present in person in the Court,stated that "with a liberty to move a petition seeking relief challenging the constitutional validity of the new rule in. Chapter X-A of the Delhi High Court (OS) Rules before the appropriate Bench of this Court I. A. 272/97 be disposed of as not pressed". In view of the above statement, yide order dated 10. 1. 1997, I. A. No. 272/97 came to be dismissed as withdrawn with the liberty as aforestated. ( 3 ) I would first consider I. A. 875/97 praying for the appointment/constitution of the Larger Bench (Full Bench) for striking down the non-obstante clause in Chapter X-A of the DHC (OS) Rules. It is submitted by defendant No. 1 in person that OrderXVIII Rule 4, Civil Procedure Code is not superseded by new rule in Chapter X-A of the DHC (OS) Rules; that Order XXVI, CPC is superseded; that Rule 4 of Order XIV is mandatory; that place of trial has to be the Court and the trial should be in the open Court; that DB-1 could not have sit inappeal against the order of previous D. B. that there is no default on the part of this applicant-defendant; that he did not participate before the Commissioner; that the question involved requires constitution of Larger Bench (Full Bench) to consider the constitutional validity of the new Rule. of Chapter X-A of DHC (OS) Rules. Asagainst this it is submitted by Mr. of Chapter X-A of DHC (OS) Rules. Asagainst this it is submitted by Mr. A. K. Marwaha,counsel for the plaintiff that in view of the dismissal of I. A. 272/97 this I. A. i. e. I. A. 875/97 is not maintainable as relief in both the I. As. are the same. ( 4 ) AS pointed out above, the relief in I. A. 272/97 is the same inasmuch as in both the applications the prayer is for constituting/formation of the Larger Bench to consider the constitutional validity of the rule in Delhi High Court (OS) Rules in Rule XA. Since I. A. 272/97 has been dismissed as withdrawn vide order dated 10. 1. 1997, in my opinion, for the same relief LA. 875/97 before the Single Judge would not be maintainable. However, assuming that I. A. 875/97 is maintainable, I proceed to consider the same. ( 5 ) LNFAO (OS) 167/95,videorderdated 17. 8. 1995,d. B.-1 of this Court, while considering a question of appointment of Local Commissioners on the original side of this Court for recording evidence of parties and witnesses, after considering the D. B. judgment in Sh. Deepak Kapur v. Ashok K. Chose and Ors. , 1994 (3) DRJ 489 (DB), and order dated 24. 10. 1994 passed by the Supreme Court in Special Leave Petition (Civil) 17238, 17239/94 (against judgment in RA 15/94 in FAO (OS) 64/94 and RA 14/94 in FAC) 63/94dated 13. 5. 1994)K. Ghosev. Rotary lntemational and Others observed that the decision of the D. B. (supra) has been left open by the Supreme Court and hence this Court in FAO (OS) 167/95 can re-examine the matter. It is also observed that as far as the scope of the Rule in Chapter X-A was concerned, the Supreme Court left it open and then the D. B. REFERRED TO to the points that arose in the LPA (167/95 ). ( 6 ) IN the order dated 8. 9. 1995 in RA 38/95 in FAO (OS) 167/95 quoting the Supreme Court observations "the question on law raised by the petitioner in the Special Leave Petition is left open", it has been noted that "this aspect was already REFERRED TO to in an order in the FAO. ( 6 ) IN the order dated 8. 9. 1995 in RA 38/95 in FAO (OS) 167/95 quoting the Supreme Court observations "the question on law raised by the petitioner in the Special Leave Petition is left open", it has been noted that "this aspect was already REFERRED TO to in an order in the FAO. We are of the view that once the question decided by the Division Bench was left open, this Court was free to deal with this question afresh without referring the matter to a Full Bench". ( 7 ) IN view of the order dated 8. 9. 1995 in R. A. 38/95 the question of referring the matter to a Full Bench, as contended by defendant No. 1, does not arise. The orders dated 15. 11. 1995 and 27. 11. 1995 are on the basis of the order passed by D. B. in FAO (OS) 167/95. In the order in FAO (OS) 167/95 the D. B. of this Court observed that "as something radical was required to be provided in the matter of recording of evidence, in the year 1991 the rule was brought in Chapter XA of the Original Side Rules. The non-obstante clause was specifically introduced to override Order XXVI to the extent mentioned earlier. It is, therefore, not possible for us to consider the rule as proviso or exception to Order 26. The rule had a definite purpose. . . . . . ". ( 8 ) THUS, in views of the above, the prayer contained in this I. A. does not deserve to be granted as covered in the order dated 8. 9. 1995 in R. A. 38/95 in FAO (OS) 167/95, as pointed out above. In view of the above discussion, the decisions in the case of fang Singh v. Brij Lal and Others, reported in AIR 1966 SC 1631 and in the case of Baksi Ram v Dwarka Das, reported in AIR 1928 Pat 438 relied on by the applicant/defendant No. 1 would not be applicable to the present case and therefore, I do not discuss the same in details. ( 9 ) AS far as R. A. No. 39/95 is concerned, it has been submitted by defendant No. 1 that he did not agree to the order appointing the Commissioner for recording the evidence; that within two days of the order he has filed the affidavit objecting to the Commission; that he did not participate in the proceedings before the Commission; that this review application is not under Order LXVII Rule I, Civil Procedure Code but under Section 151, CPC. ( 10 ) IT may be noted at the outset that Sub-rule (1) of Rule I of Order XLVII provides the grounds for review of judgments. Since defendant No. 1 has said that this review petition is not under Order XLVII Rule I, CPC, I do not refer to the grounds for review provided in Sub-rule (1) thereof. Suffice it to say that none of the grounds mentioned in Sub-rule (1) of Rule I of Order XLVII, Civil Procedure Code exists in the present case for the review of the orders dated 15. 11. 1997/27. 11. 1995. ( 11 ) AS far as invoking the inherent jurisdiction of the Court under Section 151 CP in concerned, it need hardly be said that in view of the express provision contained in Rule I of Order XLVII, Civil Procedure Code for review of a judgment. Section 151, CPC can not be invoked. ( 12 ) THE order dated 15. 11. 1995 reproduced above clearly suggests that defendant No. 1 was present along with his Counsel Mr. Naubat Rai and it was with the agreement of the Counsel for the plaintiff and defendant No. 1 that the Commissioner was appointed for recording the evidence of defendant No. 1. The reasons for appointment of Local Commissioner have also been assigned in the said order. It may be seen that only the operation of the said order was suspended till 27. 11. 1995 in view of the statement made by Senior Counsel for the p lain tiff as noted in the order dated 15. 11. 1995 itself and vide order dated 27. 11. 1995 the parties were directed to appear before the Local Commissioner for recording of the evidence, as per the order dated 15. 11. 1995, at 2 p. m. on 4. 12. 1995. Thus, it will be seen from the orders dated 15. 11. 1995 and 27. 11. 11. 1995 itself and vide order dated 27. 11. 1995 the parties were directed to appear before the Local Commissioner for recording of the evidence, as per the order dated 15. 11. 1995, at 2 p. m. on 4. 12. 1995. Thus, it will be seen from the orders dated 15. 11. 1995 and 27. 11. 1995 that the order appointing the Commissioner was an agreed order and that the consent of defendant No. 1, who was personally present and his Counsel Mr. Naubat Rai have been recorded in the order appointing the Local Commissioner on 15. 11. 1995. The new rule gave adiscretion to the Court notwithstanding Order XXVI, CPC. It need hardly be said that when the order has been passed with the consent/agreement of the parties/counsel, the parties must be deemed to have accepted that the case was one fit for exercise of discretion to appoint a Local Commissioner. The consent given by the parties would clearly fill up the requirement. Defendant No. 1, in view of the order dated 15. 11. 1995, can not be heard to contend that he did not give consent for the order dated 15. 11. 1995 or that his consent can not confer jurisdiction upon the Court to appoint the Local Commissioner for recording of the evidence. The present R. A" in view of the consent by defendant No. 1, as noted in the order dated 15. 11. 1995, does not deserve any credence and the same being an attempt to further protract the matter, is liable to be dismissed. ( 13 ) ORDINARILY I would have saddled the applicant/defendant No. 1 with exemplary costs, but I leave the parties to bear their own costs, especially looking to the fact that defendant No. 1 as far as these applications are concerned, has been appearing in person, not represented by any Advocate, though defendant No. 1 / applicant has succeeded in protracting the matter for over more than one year since the passing of the order dated 27. 11. 1995. ( 14 ) IT, therefore, follows that R. A. 39/95 and I. A. 875/97, being devoid of merits, are liable to be dismissed whereas no separate order is necessitated on I. A. NO. 875-A/97. ( 15 ) IN the result, the Review Application and both the I. As. fail.