[2025:RJ-JP:37902] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 13341/2025 1. Smt. Chandrakala W/o Ramdev, Aged About 52 Years, R/o Gram Pratap-Pura Currently Residing At Behind Naveen Hotel, Station Road, Jhunjhunu, (Raj.) 2. Shri Ramdev S/o Shri Baldev Singh, Aged About 55 Years, R/o Gram Pratap-Pura Currently Residing At Behind Naveen Hotel, Station Road, Jhunjhunu, (Raj.) ----Defendants/Petitioners Versus 1. Shri Sumer Singh S/o Shri Bajranglal, R/o Gram Tai Currently Residing Behind Naveen Hotel, Station Road, Jhunjhunu (Raj.) Through Power Of Attorney Holder Smt. Santosh Devi W/o Shri Sumer Singh Aged 48 Years R/o Gram Tai Currently Residing Behind Naveen Hotel, Station Road, Jhunjhunu (Raj.) 2. Smt. Santosh Devi W/o Shri Sumer Singh, Aged About 48 Years, R/o Gram Tai Currently Residing Behind Naveen Hotel, Station Road, Jhunjhunu (Raj.) ----Plaintiffs/Respondents For Petitioner(s) : Mr. Aditya Matolia For Respondent(s) : None present HON'BLE MR. JUSTICE GANESH RAM MEENA Order 09/09/2025 1. This Civil Writ Petition has been filed under Article 227 of the Constitution of India against the order dated 25.08.2025 passed by the Court of learned Civil Judge, Jhunjhunu in Civil Original Suit No.16/2025 (CIS No.143/2019) whereby, the objection raised by the petitioners against appointing the Commissioner for recording evidence in the Court was dismissed. [2025:RJ-JP:37902] (2 of 9) [CW-13341/2025] 2. The facts emerging out of the pleadings are that the respondents instituted a suit dated 23.02.2015 seeking permanent injunction, declaration, and demolition of illegal construction. In response to this, a reply was filed by the petitioner/defendants on 02.03.2015 praying for the dismissal of the plaint. The learned trial Court framed five issues to be decided in the suit on 25.03.2022. 3. While the trial was going on, the learned trial Court insisted on appointing a Commissioner in the presence of Presiding Officer and all staff of the Court including typist for clerical work of the Court and for writing of statements in open Court. Following this, the advocate for petitioners filed an objection/application dated 02.07.2025, contesting the legality of evidence recording through Commissioner within the Court premises when the witness was physically present and the parties were willing for the same to be recorded by the Court. 4. The learned trial Court dismissed the objections vide order dated 25.08.2025 and issued directions to the Commissioner. 5. The learned Counsel appearing for the petitioners submits that it is a settled principle of law that in the absence of objection from the opposite counsel, the same should be decided favourably and the reasons for denial, if any, should be recorded. Thus, aggrieved by the order dated 25.08.2025, the present writ petition has been filed. 6. The counsel for the petitioners/non-applicant submits that there was no formal objection or counter by the opposite counsel for respondents on the said objection/application and this amounts [2025:RJ-JP:37902] (3 of 9) [CW-13341/2025] to acceptance of the legal position, however, the learned trial Court failed to consider the proviso to Order XVIII, Rule 4(2) of the Civil Procedure Code, 1908 and the facts and circumstances of the case before delegating powers to the Commissioner. Further, the order disregards the Hon’ble Apex Court’s decision in the case of Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344, which mandate the exercise of discretion cautiously and judicially, and stress that in the absence of complex facts, witness demeanor or evidence should be preferably recorded by the Court itself. It has been contested that this also stands against the principles of natural justice and fair trial as the petitioners are being deprived of an open Court recording of evidence. Thus, the learned trial Court is misusing the appointment of Commissioner for regular work of the Court, i.e. for merely writing the statements of witness in the Court. 7. No one is present on behalf of the respondents even though the memo of appearance on behalf of them has been filed by Advocate. 8. Considered the submissions made at bar and also perused the material made available on record. 9. In the light of the submissions made by learned counsel for the petitioners and the facts on record, the Court has to examine the legality of appointing a Commissioner for examination of witnesses when the witnesses remain physically present within the Court premises. [2025:RJ-JP:37902] (4 of 9) [CW-13341/2025] 10. The Hon’ble Supreme Court in the case of Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344, has observed as under:- “5. ...It is not necessary to lay down hard-and-fast rules controlling the discretion of the court to appoint a Commissioner to record the cross-examination 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. ...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...” 11. The Delhi High Court in the case of Deepak Kapur v. Ashok K. Ghose, 1994 SCC OnLine Del 319 observed as under:- “8. Order XXVI of the CPC does not empower the Court to appoint a Commissioner to examine the witnesses except under certain circumstances. Commission may be directed to examine a person who is exempted from attending the court or a person is unable to attend the court due to sickness or infirmity as per Order 26 Rule 1. Similarly, Order 26 Rule 4 permits the examination of certain persons only, on commission. 9. Power given to the court under Order 26 of the Code of Civil Procedure is a discretionary power and like all discretions vested in the court, this discretion also is a judicial discretion. Reasons for issue of a commission are to be recorded and this requirement found in Order 26 of CPC is a salutary requirement to see that the discretion is judicially exercised and not arbitrarily. ... [2025:RJ-JP:37902] (5 of 9) [CW-13341/2025] 14. Section 165 of the Evidence Act vests an important power in the Judge to put questions to a witness; this power is given to enable the Judge to discover or to obtain proper proof of relevant facts. If examination of all the witnesses are to be done in a suit through the Commissioner appointed by the Court, it is not possible for the court to exercise this power always... ... 22. We emphasise that the normal rule is to examine the parties and the witnesses in the court and their examination on Commission is an exception to the normal rule. The discretion vested in the court to direct the examination of witnesses on commission has to be exercised judicially and this power has to be resorted to only under exceptional circumstances. Direction to examine all the parties and witnesses on commission, without reference to any extraordinary reason for the departure from the normal rule, is prima facie an illegal exercise of the discretionary power. Pendency of a larger number of cases in the courts by itself is not a valid ground to direct the examination of all the witnesses and parties in a suit on commission.” 12. The Andhra Pradesh High Court in the case of Qamar Begum and Ors. Habeebunnisa 2007(1) ALD 515 observed as under:- “7. ...the Parliament did not intend appointment of Commissioners for recording of cross-examination, as a matter of course. The question as to whether recourse should be had to, such a measure; would depend upon the pressure of work in the Court, the condition of witness, i.e. the difficulty for him to appear before the Court, the nature of questions that may crop up during cross-examination, such as, the occasion to overrule to sustain any objections, determination as to the admissibility and relevancy of documents etc. Appointment of Commissioners to record the cross- examination of an otherwise able witness, is prone to weaken the very adjudicatory process, and it would naturally tell upon the quality of adjudication...” 13. Further, the Andhra Pradesh High Court in the case of V. Rama Naidu And Another v. Smt. V. Ramadevi Civil Revision [2025:RJ-JP:37902] (6 of 9) [CW-13341/2025] Petition No. 6089 of 2016, referred Qamar Begum (supra), Vemunandana Ramakrishna Raju v. Darla Srinivas, and Salem Advocate Bar Assn. (II) (supra) has observed as under:- “24. ...the casual appointment of a commissioner to record evidence without assigning reasons is not proper. 25. ...as there is no hard and fast rule of in which case commissioner to be appointed and in which it is not, by the Court of its own without even application, but for what are the illustrative matters referred by the Apex Court in Salem Bar Association case II in 2005, it is in complicated factual matters involved Court generally record evidence at least of main witnesses and appoint advocate commissioner to record evidence of other witnesses more particularly from pressure of work and work load with huge pendency in almost all courts...” 14. In the present case, the learned trial Court has dismissed the objections vide order dated 25.08.2025, after considering the object behind the amendment in 2002 in Order XVIII, Rule 4 of the Civil Procedure Code, 1908. The learned trial Court found that since there is no special circumstance requiring the Court to record the evidence of witnesses itself, the Commissioner can be appointed by it to record the same in the Court room. 15. The relevant provision of Order XVIII, Rule 4 is 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: ... (2) The evidence (cross-examination and re- examination) 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: [2025:RJ-JP:37902] (7 of 9) [CW-13341/2025] Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.” 16. The issue raised in the present writ petition is that whether a Commissioner can be appointed under Order XVIII, Rule 4 read with Order XXVI, Rule 1-8 of the Civil Procedure Code, 1908 to record the evidence (cross-examination and re-examination) within the court premises when the witness was physically present and the parties were willing for the same to be recorded by the Court. 17. Having regard to the observations of the Hon'ble Courts as quoted above and the discussions made and also taking into consideration the factual matrix of the case and the prayer made in this petition, the Court is of the opinion that the power to appoint a Commissioner, cannot be exercised as a matter of course. Regard needs to be given to the special circumstances as has been provided under Order XXVI, Rule 1-8 of the Civil Procedure Code, 1908 and the guidelines laid down by the Hon’ble Apex Court in case of Salem Advocate Bar Assn. (II)(supra). 18. Order XXVI of the Civil Procedure Code, 1908 deals with the provisions with regard to appointment of Commissioner to examine the witnesses. The provision of Order XXVI Rule 4 of the Civil Procedure Code, 1908 reads as under:- “4. Persons for whose examination commission may issue. (1) Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of- (a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before [2025:RJ-JP:37902] (8 of 9) [CW-13341/2025] the date on which he is required to be examined in Court; and (c) any person in the service of the Government who cannot in the opinion of the Court, attend without detriment to the public service: Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice: Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do. (2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint. (3) The Court on issuing any commission may this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.” 19. The aforementioned provision does meant for the witnesses who are present in the Court for evidence as like in the present case. When the witness is present in Court, his evidence is required to be recorded by the Court. There is no justification in appointing Commissioner for recording evidence of a witness present in the Court. 20. In view of the discussion made above, the writ petition deserves to be allowed as the submissions of the petitioners have merit. 21. Accordingly, the writ petition is allowed and the order dated 25.08.2025 passed by the Court of learned Senior Civil Judge, Jhunjhunu in the Civil Original Suit No.16/205 (C.I.S.No. 143/2019) is set aside. [2025:RJ-JP:37902] (9 of 9) [CW-13341/2025] 22. The objections made by the petitioners are sustained. The evidence of the witnesses who are coming to Court be recorded by the Court and not by the Commissioner. 23. Stay application as well as pending application, if any, also stands disposed of. (GANESH RAM MEENA),J Ashish Kumar /129