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2008 DIGILAW 199 (BOM)

Savitriben M. Sanghvi v. Pankaj Champaklal Gandhi

2008-02-07

S.J.VAZIFDAR

body2008
JUDGMENT : The learned Commissioner Mr. A. R. Bapat has made an application for fixing his remuneration and for the payment thereof by the parties to the above proceedings viz. the Plaintiff, the Defendant and the Obstructionist. 2. As the Defendant and the Obstructionist, husband and wife, have appeared in person and as the matter requires the determination of questions of law, I considered it appropriate to appoint amicus curiae. Mr.Colabawala and Mr.Saraf appeared amicus curiae. I must at the outset express my appreciation for the valuable assistance rendered by them so willingly. 3. The above Summary Suit was filed on 22.12.1998 and decreed on 10.12.2002. The Plaintiff filed an execution application on 19.4.2003. The Defendant's wife, the Obstructionist, obstructed the execution of the decree. The flat which is the subject matter of the execution proceedings was attached on 29.7.2004. The Plaintiff therefore filed Chamber Summons No.395 of 2004 on 15.4.2004 for removing the Obstructionist. On 10.8.2004 the Obstructionist filed Chamber Summons No.1195 of 2004 for raising the attachment. 4. The said Chamber Summons No.395 of 2004 and 1195 of 2004 were considered by S.U. Kamdar, J. (as he then was). When the Chamber Summons No.395 of 2004 and 1195 of 2004 reached hearing on 29.3.2005, the learned Judge opined that they should be considered in detail on evidence. The learned Judge therefore directed that both the Chamber Summons be transferred to the Commissioner for recording evidence. The learned Judge appointed a Commissioner and directed him to file a report on or before 15.6.2005. The learned Judge however did not fix the Commissioner's remuneration. 5. Thereafter, the Commissioner appointed by the order dated 29.3.2005 was substituted by the present Commissioner. 6. This is an unfortunate case for the learned Commissioner who has discharged his functions, if I may say with respect to him, admirably. He recorded the evidence meticulously, granted every facility to the parties including the use of his chamber, incurred out of pocket expenses himself and has discharged his functions as a Commissioner, without receiving any payment to date. He obviously, did all this on the faith and understanding that he would receive his remuneration. He never once refused to perform his role as a Commissioner on the ground that he had not received his remuneration. He obviously, did all this on the faith and understanding that he would receive his remuneration. He never once refused to perform his role as a Commissioner on the ground that he had not received his remuneration. His faith has been betrayed and he now finds himself in an unenviable position of having put in all this work, extended various facilities to the parties, but not having received his remuneration or even the out of pocket expenses. 7. The first question that arises is whether the Court has the power to appoint a Commissioner without the consent of the parties. The second question relates to the amount of remuneration that the Court is entitled to sanction in the absence of the remuneration having been fixed by the Court while appointing the Commissioner or agreed to between the parties and the Commissioner. The third question is the apportionment between the parties of the remuneration of the Commissioner and the other costs and expenses of the Commissioner. The fourth question is whether even in the absence of any order the Commissioner ought to be made to await the outcome of the proceedings in which the evidence was recorded before receiving his remuneration. The last question is whether the Court has the power to apportion the expenses of the commission tentatively and subject to final orders at the hearing of the proceeding. 8. The learned amicus curiae submitted that prior to its amendment in 1999 and thereafter in 2002, the Code of Civil Procedure, 1908, envisaged the Courts power to issue commission to examine witnesses in very limited circumstances set out in Order XXVI. They also invited my attention to the Satish Chandra Committee Report and the Justice V. S. Malimath Committee Report , 1989-1990. The said reports and the Law Commission in its 163rd Report recommended that evidence may be recorded on commission instead of being recorded in open Court. This was to deal with the situation of arrears and the increasing burden on the Courts. Not all the recommendations however were accepted by the Legislature. 9. The Code of Civil Procedure (Amendment) Act, 2002 (Act No.22 of 2002) came into force with effect from 1st July, 2002. Section 12 thereof, amended Order XVIII. This was to deal with the situation of arrears and the increasing burden on the Courts. Not all the recommendations however were accepted by the Legislature. 9. The Code of Civil Procedure (Amendment) Act, 2002 (Act No.22 of 2002) came into force with effect from 1st July, 2002. Section 12 thereof, amended Order XVIII. Section 12(b) of the Amendment Act, 2002 substituted Rule 4 as substituted by clause (ii) of Section 27 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999). Order XVIII Rule 4 as it now stands reads as under :- “[4. Recording of evidence. —(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) The evidence (cross-examination and reexamination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit. (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, insofar as they are applicable, shall apply to the issue, execution and return of such commission under this rule.]” 10. A plain reading of Order XVIII Rule 4 indicates that the Court has the power to order the recording of evidence on commission. This is clear from sub-rule (2) of Rule 4 which provides that the evidence in cross-examination and reexamination of the witness shall be taken either by the Court or by the Commissioner appointed by it. The provision does not limit or restrict the power of the Court to appoint a Commissioner for recording evidence only when the parties consent to the same. 11. This is further clear from the proviso to sub-rule (2) which provides that the Court may, while appointing a Commissioner, consider taking into account such relevant factors as it thinks fit. If the appointment of a Commissioner was only in cases where all the parties consented to the same, it would not have been necessary for the legislature to enact the proviso to subrule 12. Indeed, a reading of rule 4 in its entirety, also supports this view. For instance, sub-rule (4) of Rule 4 entitles a Commissioner to record such remarks as he thinks material, regarding the demeanour of any witness while under examination. This is not dependent upon the consent of the parties. 13. The Constitutional validity of the Amendment Acts of 1999 and 2002 including in so far as they related to Order XVIII Rule 4, was upheld by the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2003) 1 SCC, 49. The Supreme Court held as under :- “19. 13. The Constitutional validity of the Amendment Acts of 1999 and 2002 including in so far as they related to Order XVIII Rule 4, was upheld by the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2003) 1 SCC, 49. The Supreme Court held as under :- “19. Order 18 Rule 4(2) gives the court the power to decide as to whether evidence of a witness shall be taken either by the court or by the Commissioner. An apprehension was raised to the effect that the court has no discretion and once it decides that the evidence will be recorded by the Commissioner then evidence of other witnesses cannot be recorded in court. We do not think that this is the correct interpretation of sub-rule (2) of Rule 4. Under the said subrule, the court has the power to direct either all the evidence being recorded in court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the court. For example, if the plaintiff wants to examine 10 witnesses, then the court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of the other five witnesses evidence will be recorded in court. In this connection, we may refer to Order 18 Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word “ mechanically” indicates that the evidence can be recorded even with the help of the electronic media, audio or audio-visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.” 14. In Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) 6 SCC, 344, the Supreme Court specifically considered Order XVIII Rule 4. In paragraphs 5 and 6, the Supreme Court held as under :- “5. The amendment provides that in every case, the examination-in-chief of a witness shall be on affidavit. In Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) 6 SCC, 344, the Supreme Court specifically considered Order XVIII Rule 4. In paragraphs 5 and 6, the Supreme Court held as under :- “5. The amendment provides that in every case, the examination-in-chief of a witness shall be on affidavit. The court has already been vested with the power to permit affidavits to be filed as evidence as provided in Order 19 Rules 1 and 2 of the Code. It has to be kept in view that the right of crossexamination and re-examination in open court has not been disturbed by Order 18 Rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but we feel that no exception can be taken in regard to the power of the legislature to amend the Code and provide for the examination-in-chief to be on affidavit or cross-examination before a Commissioner. The scope of Order 18 Rule 4 has been examined and its validity upheld in Salem Advocate Bar Assn. Case AIR 2003 1 SCC 49. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of the examination-in-chief. Further, in Salem Advocate Bar Assn. case it has been held that the trial court in appropriate cases can permit the examination-in-chief to be recorded in court. Proviso to sub-rule (2) of Rule 4 Order 18 clearly suggests that the court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the particular witness for determining whether the witness shall be examined in court or by the Commissioner appointed by it. The power under Order 18 Rule 4(2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. It is not necessary to lay down hard-and-fast rules controlling the discretion of the court to appoint a Commissioner to record the crossexamination and re-examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. It is not necessary to lay down hard-and-fast rules controlling the discretion of the court to appoint a Commissioner to record the crossexamination and re-examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. For instance, a case may involve complex questions of title, complex questions in partition or suits relating to partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of Wills, etc. In such cases, as far as possible, the court may prefer to itself record the cross-examination of the material witnesses. Another contention raised is that when evidence is recorded by the Commissioner, the court would be deprived of the benefit of watching the demeanour of witnesses. That may be so, but in our view, the will of the legislature, which has by amending the Code provided for recording evidence by the Commissioner for saving the courts time taken for the said purpose, cannot be defeated merely on the ground that the court would be deprived of watching the demeanour of the witnesses. Further, as noticed above, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the court. It may also be noted that Order 18 Rule 4, specifically provides that the Commissioner may record such remarks as it thinks material i n respect of the demeanour of any witness while under examination. The court would have the benefit of the observations if made by the Commissioner.” “6.................................................................. Regarding the apprehension that the payment of fees to the Commissioner will add to the burden of the litigant, we feel that generally the expenses incurred towards the fee payable to the Commissioner are likely to be less than the expenditure incurred for attending court on various dates for recording evidence besides the harassment and inconvenience to attend court again and again for the same purpose and, therefore, in reality in most of the cases, there would be no additional burden.” 15. It is clear therefore that the power of the Court to order the recording of evidence by a Commissioner is not restricted to cases where parties consent to the same. It is clear therefore that the power of the Court to order the recording of evidence by a Commissioner is not restricted to cases where parties consent to the same. It is for the Court to consider the facts and circumstances in each case while deciding whether or not the evidence should be recorded by a Commissioner. 16. This brings me to the second question viz. the costs of and incidental to the Commission and the remuneration of the Commissioner. 17. Sub-rule (7) of Rule 4 of Order XVIII provides :- “The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.” The Court which passes the order appointing the Commissioner must fix his remuneration. In other words, it is not the High Court that fixes the Commissioner's remuneration. Where the legislature intends the High Court to decide on any matter it so provides. For instance, sub-rule (6) provides that the High Court shall prepare a panel of Commissioners to record the evidence under Rule 4. 18. This becomes further clear when it is noted that Order XVIII Rule 4 as it existed pursuant to the Amendment Act of 1999 provided in sub-rule (3) that :- “The commissioner shall be paid such sum for recording of evidence as may be prescribed by the High Court.” The 2002 amendment which is now in force, in contrast, provides in sub-rule (7) of Order 18 rule 4 that “it is the Court that may fix the amount to paid as remuneration for the services of the Commissioner.” 19. Rule 174 C of the Bombay High Court (Original Side) Rules, 1980 reads as under :“ 174-C.-The Commissioner appointed under Rule 174-A would be entitled to remuneration at the rate of Rs.200/- per hour subject to minimum of Rs.200/- a day or such other rate as the Hon'ble Court may direct.” (emphasis supplied) The power of the Court appointing the Commissioner is not restricted to fixing the rates specified in the rules. This is clear from Rule 174C. In a given case the Court appointing the Commissioner may fix his remuneration in excess of the rates prescribed in the rules. 20. This is clear from Rule 174C. In a given case the Court appointing the Commissioner may fix his remuneration in excess of the rates prescribed in the rules. 20. The learned amicus curiae also submitted that even prior to the amendment of Order XVIII various High Courts held that the Court under Section 151 of the Code of Civil Procedure, had inherent powers to issue directions as regards payment of fees to the Commissioner. It is however not necessary for me to consider this aspect in view of what I have held above. 21. The remuneration for the Commissioner in the present case, now falls for consideration. 22. The learned Commissioner held meetings on 70 days. Adjournments were granted on 38 days on the application of the parties. The evidence recorded on 32 days was for a total of 120 hours. 23. The learned Commissioner has requested that his remuneration be fixed at Rs.2500/- per day on the days on which evidence was actually recorded and Rs.1000/- per day on the days on which the matter was adjourned. 24. I must at the outset, clarify that I do not for a moment suggest that the amounts claimed by the learned Commissioner are unreasonable. As I have already observed, he has done a commendable job. However, it appears that in the midst of the commission, it was apparent that the Defendant and the Obstructionist informed the Commissioner that they would be unable to bear the costs of the Commissioner including the stenographer's charges due to financial difficulties. It was indeed extremely considerate and generous of the learned Commissioner to have continued with the work of the commission despite his remuneration not having been paid and the costs incurred by him not having been reimbursed. However, in these circumstances, if he desired anything more than the remuneration fixed by the rules, he ought to have approached the Court to have the same fixed, before proceeding further in the matter. 25(A). Under the rules, the Commissioner is entitled to a minimum of Rs.200/- per day even on the 38 days when the matter was adjourned. The least that he is entitled to on these 38 days under the rules, is Rs.7600/-. (B). On the 32 days when the matter proceeded before the Commissioner, evidence was recorded for an aggregate of 120 hours. The least that he is entitled to on these 38 days under the rules, is Rs.7600/-. (B). On the 32 days when the matter proceeded before the Commissioner, evidence was recorded for an aggregate of 120 hours. Thus, even under the rules, the Commissioner would be entitled to a sum of Rs. 24,000/- (120 hours x Rs.200). (C). The Commissioner has paid sums of Rs.13,250/- and Rs.11,283/- to the stenographer. He has incurred a further amount of Rs.458/- as out of pocket expenses. He has not even been reimbursed these amounts aggregating to Rs.24,991/-. (D). In addition thereto, out of 70 meetings, 62 meetings were held in the Commissioner's Chamber. The very least that he ought to be entitled to for the provision of this facility, is a sum of Rs.150/- per day, aggregating to Rs.9300/-. (E). The Commissioner is thus entitled to an aggregate sum of Rs.65,891/- (Rs.24,991 + 9,300 + 7,600 + Rs.24,000). 26. This brings me to the third question of apportionment of the Commissioner's remuneration and costs of the commission between the Plaintiff, the Defendant and the Obstructionist. 27. The Court has the power and the discretion to apportion between the parties the costs of and incidental to the commission including the remuneration of the Commissioner. The discretion is entirely that of the Court. This is clear for atleast two reasons. 28. Firstly, there is nothing in Order XVIII Rule 4 which restricts the Court's discretion for apportioning the costs between the parties. Sub-rule (7) which authorises the Court to fix the amount to be paid as remuneration for the services of the Commissioner does not state how the remuneration is to be apportioned between the parties. 29. Secondly, it is pertinent to note that sub-rules (3) and (4) of Order XVIII Rule 4 as amended by the Amendment Act of 1999 provided :- “(3) The commissioner shall be paid such sum for recording of evidence as may be prescribed by the High Court.” “(4) The amount payable to the commissioner under sub-rule (3) shall be paid by the Court or by the parties summoning the witness as may be prescribed by the High Court.” This provision is significantly absent in Order XVIII after the Amendment Act of 2002. The intention of the legislature is therefore clear. The intention of the legislature is therefore clear. It is now left to the discretion of the Court to apportion the expenses between the parties as it deems just and proper. Order XVIII Rule 4 as it now stands, does not circumscribe or limit the exercise of this discretion as was done by sub-rule (4) of Order XVIII, rule 4 by the Amendment Act of 1999. 30. The fourth question therefore is whether the Commissioner is entitled to his remuneration and costs only after the matter is finally decided. 31. The apportionment of the costs of the commission will form a part of the final order in the proceedings. The parties would be entitled to enforce the order to recover the costs. 32. In most cases however the proceedings in which evidence is recorded on commission would be decided much after the Commissioner has completed recording evidence and submitted the report to the Court. The decision may be carried in appeal. The final decision would in most cases take years to be decided. 33. I see no reason why the payment of the Commissioner's costs ought to be postponed to the determination of the action in which the evidence was recorded. A view to the contrary would lead to the provisions of Order XVIII rule 4 becoming inoperative. Nobody would agree to being appointment as a Commissioner on such a condition. 34. The Court is therefore not only entitled to but must determine the remuneration of the Commissioner and the costs of the Commission and to order the payment thereof before the decision of the action in which the Commissioner was appointed. 35. That leaves for consideration the last aspect of the matter. The answer must be in the affirmative as a logical outcome of the answer to the previous question. 36. Till the proceedings are decided finally, it is not possible to decide finally which of the parties ought to be made liable for the costs of the commission. The Court would require to take into consideration various factors including the merits of the case and the conduct of the parties. It would therefore be necessary to have an interim apportionment of the costs, which would be subject to final orders at the hearing of the action. It is neither possible nor desirable to fix any guidelines or rigid rules in this regard. It would therefore be necessary to have an interim apportionment of the costs, which would be subject to final orders at the hearing of the action. It is neither possible nor desirable to fix any guidelines or rigid rules in this regard. Various factors would have to be considered by the Court while fixing the interim apportionment pending the final determination thereof. 37. In the present case, the Defendant and the Obstructionist contended that they had informed the Commissioner that they would not be able to bear his costs due to their financial position. I am afraid, it is not possible to take this as valid ground for not apportioning any amounts towards their share. The order dated 29.3.2005 appointing the Commissioner has not been challenged. Despite the fact that the Commissioner proceeded with the recording of evidence, none of the parties made any application to the Court to have the order dated 29.3.2005 varied. If any of the parties desired to modify or challenge the order on the ground that they were unable to afford the same and therefore to persuade the Court to record the evidence themselves, they ought to have adopted appropriate proceedings. They accepted the order. They accepted the benefit of the order by allowing the Commissioner to continue recording evidence without seeking any modification of the order dated 29.3.2005. They are now not entitled to avoid paying their share, if any, of the costs of the Commissioner. 38. However, at this stage of the interim apportionment of the Commissioner's remuneration and costs, I am not inclined to direct the Obstructionist to pay any amount. The learned Judge in the order dated 29.3.2005 observed that it was not possible to uphold the Plaintiff's contention without recording evidence in view of the documents produced by her. It is important to note that even before the suit was filed, proceedings had been instituted by the Obstructionist against her husband, the Defendant in the Family Court at Bandra being Petition No.B2 of 1996. By an order and judgment dated 6.1.2001 i.e. almost two years before the decree was passed in the present suit, the Family Court had come to the conclusion that the Obstructionist had proved that the said flat was a matrimonial home in which she had a right to stay along with her children. By an order and judgment dated 6.1.2001 i.e. almost two years before the decree was passed in the present suit, the Family Court had come to the conclusion that the Obstructionist had proved that the said flat was a matrimonial home in which she had a right to stay along with her children. The Obstructionist contended even then that the flat had been purchased out of the sale proceeds of another flat and that the funds are that of a Hindu Undivided Family though it stands in the name of the Defendant. This is the main contention in the execution proceedings. In these circumstances, I see no reason to burden the Obstructionist with costs at this stage. 39. I am however inclined to apportion at this stage half the amount as against the Defendant. The main question is whether the property belongs to the Hindu Undivided Family. Prima-facie, it appears that the Defendant has been responsible for the lengthy evidence. For instance, he has asked a total of 444 questions out of the total 798 questions asked by all the parties. Most of the questions, prima-facie at least, were entirely irrelevant. They did not pertain to the main issue at all. 40. Needless to add that this is only a prima-facie finding and would be subject to any orders that may be passed including in respect of the Commissioner's fees and the costs of the Commission at the final hearing of both the Chamber Summons. 41. In the circumstances, as an interim measure, I apportion the remuneration and the costs of the Commissioner aggregating to Rs.65,891/- equally between the Plaintiff and the Defendant. The same shall be subject to final orders at the hearing of the Chamber Summons. The amount shall be paid by the Plaintiff and the Defendant on or before 8.4.2008. The application is accordingly disposed of.