2017 (2) TMI 1233 - HC - Indian Laws

Appointment of Court Commissioner - bearing of fee of the Court Commissioner - Held that - Once the plaintiff is willing to bear the costs of the Commission subject to final order as to costs in the suit, the objection of the defendant no.1 does not come in the way, especially when the Joint Registrars are burdened with recording of evidence. Accordingly, Mr. Dinesh Dayal, Additional District Judge (Retd.) (Ph. No.9810100200) is appointed as the Court Commissioner to record evidence in the suit. The fee of the Court Commissioner, besides out of pocket expenses is tentatively fixed at ₹ 1,00,000/- to be initially borne by the plaintiff subject to final orders as to costs in the suit. The Court Commissioner is requested to record the evidence within the Court Complex and to complete the same within one year of the date of first appearance of the parties before him. He is granted liberty to have the matter placed before the Court, if any of the parties are found delaying recording of the evidence.The Registry is directed to send the file of the suit at the place and time fixed by the Court Commissioner for recording of evidence.

Issues involved:
1. Amendment of plaint without seeking permission.
2. Material bearing of illegal amendments on the outcome of the suit.
3. Deferral of framing of issues.
4. Framing of issues based on pleadings.
5. Liberty to file documents and list of witnesses.
6. Appointment of Court Commissioner for recording evidence.

Analysis:
1. The judgment addresses the issue of the plaintiff amending the plaint without seeking permission. The defendant pointed out this discrepancy, leading to an admission and apology from the plaintiff's senior counsel. However, it was acknowledged that the illegal amendments did not impact the suit's outcome, leading the court to decide against directing the plaintiff to file a new amended plaint.

2. The court considered the material bearing of the illegal amendments on the suit's outcome. The defendant's counsel confirmed that the amendments did not affect the case's merits. This assessment influenced the decision not to mandate a new amended plaint and to proceed without deferring the framing of issues.

3. The judgment delves into the deferral of framing issues. The defendant's counsel sought a deferral, citing a relevant legal precedent. However, the court clarified that the application under Order VII Rule 11 of the CPC had been dismissed, and further proceedings could not be deferred based on this aspect alone.

4. The court proceeded to frame issues based on the pleadings of the parties. Seven issues were framed, covering crucial aspects such as the creation of an Hindu Undivided Family, the validity of a will, the suit's timeliness, court fees payment, and the authenticity of the amended plaint's signature, among others.

5. The judgment also addressed the parties' liberty to file documents and list witnesses within a specified timeframe. Additionally, the appointment of a Court Commissioner, Mr. Dinesh Dayal, was made to record evidence in the suit. The Commissioner was instructed to complete the evidence recording within a year and granted the authority to report any delays by the parties.

6. The Court Commissioner was tasked with recording evidence within the Court Complex, with the plaintiff initially bearing the Commissioner's fee and out-of-pocket expenses. The judgment outlined specific instructions for the Commissioner's role and directed the Registry to facilitate the evidence recording process efficiently.

This detailed analysis of the judgment highlights the key legal issues addressed, the court's decisions, and the procedural steps taken to ensure a fair and efficient legal process.

← Previous Next →