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Priyanka Verma vs Kunal Verma on 6 August, 2018

$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 6th August, 2018
+ MAT.APP.(F.C.) 182/2018 C.M.30797/2018
PRIYANKA VERMA ….. Appellant
Through: Mr.Vivek Singh, Advocate
versus
KUNAL VERMA ….. Respondent
Through: Mr.V.K.Gupta, Sr.Adv. with Mr.Sakal
Bhushan and Mr.Vipul Agrawal,
Advts.
CORAM:
HON’BLE MR. JUSTICE G.S.SISTANI
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)

1. Although process fee has been returned with objection, Mr.V.K.Gupta,
learned Senior Counsel, on instructions, has entered appearance on
behalf of the respondent on an advance copy having been served and
submits that the appeal is not maintainable.

2. Challenge in this appeal is to the order dated 04.07.2018 and
09.07.2018 passed by the Principal Judge, Family Court, Saket, New
Delhi. We may note that this matter was listed on 03.08.2018 when
we had passed the following order:

“MAT.APP.(F.C.) 182/2018 CM No.30797/2018 (stay)
Challenge in this appeal is to the orders dated 04.07.2018 and
09.07.2018 passed by the Principal Judge, Family Court, Saket,
New Delhi.

Mr.Singh, counsel for the appellant submits that on account of
slanderous and sensitive nature of allegation made against the
appellant, the appellant could not appear for recording of evidence
before the local Commissioner appointed by the Family Court.
While prima facie we find no infirmity in the orders passed by the

MATA (FC) 182/2018 Page 1 of 15
Principal Judge, Family Court who has also directed to record the
evidence of the appellant in Camera. However, we are of the view
that a lady local Commissioner should be appointed in the matter.
Notice to show cause as to why the appeal be not admitted.

List on 06.08.2018.

The appellant will take steps to serve the respondent by all
modes including dasti. Additionally, counsel will be informed
telephonically via whatsapp and e-mail today itself.
Copy of this order be given dasti under the signature of Court
Master.”

3. Today, counsel for the appellant submits that appellant is not agreeable
for appointment of a lady Local Commissioner who would hold
proceedings in camera. He relies on a judgment of the full bench of this
Court rendered in the case of Pushpa Devi vs. Bimla Devi Ors.
reported in 2000 II AD (Delhi), more particularly paragraphs no.10 to
12, which we reproduce hereinbelow:

“10. It is due to such circumstances that Chapter X-A had been
incorporated in the Delhi High Court (Original Side) Rules, 1967.
We are in agreement with the observations in Fashion Linkers’
case that something drastic had been required. Therefore this
Rule had been incorporated. In our view the opinion expressed in
Deepak Kapur’s case that the Rule was merely a proviso or an
exception to Order 26 of the Code of Civil Procedure is not the
correct view. The beginning part of Chapter X-A clearly states
that it is to apply “notwithstanding anything contained in Order
26 of the Code of Civil Procedure”. This itself makes it clear that
while exercising powers under this Rule the Court is not
circumscribed by the limits which are laid down under Order 26
of the Code of Civil Procedure. Under this Rule Court can
exercise power even for other reasons i.e. reasons/ circumstances
not set out in Order 26, CPC, if in its discretion it is necessary to
do so. However it is also clear that this Rule does not give to the
Court an absolute discretion to refer recording of evidence to a

MATA (FC) 182/2018 Page 2 of 15
Commissioner without there being any reasons whatsoever.
Recording of evidence by the Court has to be the normal
rule/procedure. Examination of witnesses on commission has to
be an exception. The discretion, vested by virtue of this Rule, has
to be exercised judicially and for valid reasons. The Court must
while exercising power under this Rule record those reasons in
writing. It is also clear that while the Court may exercise the
power under this Rule, it cannot by virtue of this Rule delegate
any judicial powers to the Commissioner. Thus anything which is
required to be dealt with judicially can only be done by the Court
and cannot be delegated to the Commissioner. Thus for example
the power to allow or disallow questions or to decide objections
or to decide relevancy cannot be delegated to a Commissioner.
The provisions of Order 26, Rule 16-A would continue to apply
even though the Court may exercise power under Chapter X-A.

11. In cases where both the parties consent to refer the entire or
part of the evidence to a Commissioner then unless there is some
very strong reasons to rule otherwise, the Court should normally
act on such consent. By consent of parties recording of evidence
by the Commissioner can be directed even though the case may
not be very old and there may be no other circumstances
justifying it.

12. However where the parties do not or a party does not so
consent then the discretion must be exercised judicially and for
valid reasons. The mere fact that the matter is old and/or
languishing would not; by itself, be a ground justifying referring
the recording of evidence to a Commissioner. A matter being old
and/or languishing would be a strong ground for the Court to
refuse adjournments and take up trial immediately. Thus for
referring, without consent, the recording of evidence to a
Commissioner the factum of the case being old must be coupled
with other circumstances or reasons justifying such a course
being followed. To give some examples the parties being very
old if there is some cogent reasons why the Court cannot take up
trial in the near future or if there is a grave urgency to have the
evidence recorded due to possibility of evidence being lost and/or
not available or if there are a large number of witnesses, the

MATA (FC) 182/2018 Page 3 of 15
Court could exercise powers under Chapter X-A. Clarified that
the examples given are merely illustrative and not exhaustive.”

4. Counsel for the appellant submits that the divorce petition was filed in
the year 2017. There is no urgency in the matter, neither any
application was filed for appointment of a Local Commissioner nor any
reason has been cited by the court while appointing a Local
Commissioner to record the evidence.

5. We do not find force in the submissions made by the counsel for the
appellant. With a view to appreciate the background which led to
passing of the order appointing the Local Commissioner and the
rejection of the request made by the appellant herein for recall of the
said order. We deem it appropriate to reproduce the orders dated
05.05.2018, 3.07.2018, 04.07.2018 09.07.2018, which are
reproduced as under:

“05.05.2018
Present: Petitioner with learned counsel Shri Vijender
Sharma
Learned Counsel Sh. Ravi Bhushan for the
respondent.

Replication filed, copy furnished. On the pleading of the
parties the following issues are framed.

1. Whether the consent of the petitioner for marriage was
obtained by fraud within Section 12 of Hindu Marriage Act.
OPP

2. Whether the respondent after the solemnization of
marriage has treated the petitioner with cruelty within the
meaning of Section 13 (1) (ia) of the Hindu Marriage Act. OPP

3. Whether the respondent has been incurably of unsound
mind or has been suffering continuously intermittently from

MATA (FC) 182/2018 Page 4 of 15
mental disorder of such a kind and to such an extent that the
petitioner cannot reasonably expected to live with the
respondent. OPP

4. Relief
No other issues arises or pressed for. List of witnesses be
furnished within one month from today. Advance copy of the
affidavit of the witnesses to be examined by the petitioner be
supplied to the respondent/counsel one month in advance. At
this stage it is prayed by the petitioner that the Local
Commissioner be appointed for recording evidence in the
present case.

Sri Ravi Bhushan learned counsel for the respondent
submits that he has no objection for recording of evidence by
the local commissioner. Sri Bhushan however submits that he
shall seek instruction from the respondent that whether she will
bear the expenses for her witnesses.

Sri S.C. Malik retired ADJ is appointed as local
commissioner for recording of evidence in the present case. His
fee is fixed at Rs.40,000 as retainer and Rs.10,000 for each
witnesses. Petitioner undertakes to bear the retainer amount and
expenses for his witnesses. Learned counsel shall communicate
with Shri SC Malik and settle the date for recording of evidence.
Alhmad shall make available the file to the local commissioner.
Rs.500 is assessed as fee of Alhmad for making available the
file with the LC on each date of hearing, Demand draft for fee
of Local Commissioner be placed on record in favour of Sri
S.C. Malik within two weeks from today. Alhmad shall
thereafter communicate the order to Shri SC Malik and request
him to record the testimony of the witnesses.
Petitioner/husband shall arrange the secretarial services and bear
the expenses thereof.

MATA (FC) 182/2018 Page 5 of 15

Proceedings of the local commissioner will be held in the family
Court, Saket, New Delhi.

Now to come up for 18.08.2018 before this court after
conclusion of the recording of entire evidence. Copy of this
order be given Dasti to both the parties and one copy be also
sent to Shri S.C. Malik learned Local Commissioner.

03.07.2018
It is 12:30 PM.

Present: Petitioner with learned counsel Sh. Vijender Sharma.

Learned Proxy Counsel Sri Siddharth Verma for the
respondent.

File has been put up by Learned Local Commissioner as the
respondent’s main counsel has not appeared for cross-
examination though the dates were fixed with consent and to the
convenience of the parties and counsel.

The request for deferment of cross examination has been
strongly opposed by the counsel for the petitioner.

It is noticed that the respondent is also not available. No
reason have been assigned for her absence. There can be no
justification in the absence of the respondent.

Matter is passed over to be taken up at 2 PM.

Learned proxy Counsel shall ensure the presence of
respondent failing which the court shall proceed ex-parte against
the respondent under order IX Rule 12 CPC.

Called again, it is 02.05 PM.

Present: Petitioner with learned counsel Sh. Vijender Sharma.

Learned Proxy Counsel Sri Siddharth Verma for the
respondent.

MATA (FC) 182/2018 Page 6 of 15

Shri Verma submits that neither the respondent nor the main
counsel can appear today.

It is noticed that the matter is already listed before the
Learned Local Commissioner for 04.07.2018 at 11:00 AM.

Put up before the Learned local commissioner on the date
fixed.

It is made clear that failing the presence of the respondent
Court may proceed against ex-parte and filling the presence of
counsel right to cross-examine the witness may be closed.

Before Shri SC Malik, retired A.D S.J appointed by the
court of Sri Narattom Kaushal, Principal Family Judge,
Saket Courts, New Delhi for recording of evidence.

03.07.2018
Present: Sh. Kunal Verma in person with his counsel Shri
Vijender Sharma (Mobile No. 9810475118) Shri Kartar Sharma
(Mobile No. 09958996959) Sh. Siddharth Verma (Mobile No.
9810984587), advocate as proxy counsel for Sri Ravi Bhushan
(Mobile No. 9810988643) advocate for respondent Smt.
Priyanka Verma without the respondent.

The Alhmad has put up the file before me at 11 AM for
recording of PE, he has been paid his diet money even my fees
for recording the evidence already stands paid.

As the petitioner is present, his examination in chief as PW-1
has been recorded, but when the stage of his cross examination
has come, Sri Siddharth Verma advocate proxy counsel for Sh.
Ravi Bhushan advocate for respondent has submitted that
learned counsel for the respondent is not available for cross-
examination of the witness due to his personal difficulty and
therefore the Cross examination of the witness be deferred. The
request for deferment of cross examination of the witness is
strongly opposed on the ground that personal difficulty of the

MATA (FC) 182/2018 Page 7 of 15
counsel is no ground for adjournment especially when date for
today has been given with the consent of the parties, their
counsel. It is submitted for the petitioner that if adjournments
are granted like this and for like reasons the very purpose of
appointment of Local commissioner for recording evidence for
expeditious disposal of cases is defeated. In these
circumstances I deem fit that this put before the Hon’ble Court
for appropriate order. The file be put before the Hon’ble Court
just now.

03.07.2018 (second order sheet of post lunch session)
Present: as before today in the morning.

The file had been put before the Hon’ble Court for appropriate
orders in the facts and circumstances of this case. The Hon’ble
Court has passed appropriate orders after hearing learned
counsel for the parties.

Now to come up on 04.07.2018, 09.07.2017, 10.07.2018,
11.07.2018, 12.07.2018 13.07.2018 which are the dates
already fixed with the consent of learned Counsel for the parties
at 11:00 AM.

__

04.07.2018

File is taken up today as per the instruction of learned Local
Commissioner.

Present: Petitioner with learned counsel Shri Vijender Sharma.

Learned Counsel Sh. Ravi Bhushan for the respondent.

Shri Bhushan tenders apology for conduct of his proxy
counsel on the last date of hearing 03.07.2017. Apology
accepted.

An application has been moved under Section 11 of
Family Courts act for holding camera proceeding. Application is

MATA (FC) 182/2018 Page 8 of 15
allowed. Learned Local Commissioner shall ensure that no
outsider is present at the time of proceeding before him.

Another application filed under Order VI Rule 17 of CPC
has been moved by Shri Bhushan seeking amendment in WS. It
is submitted that certain documents which were apart of Petition
were handed over to learned counsel on 05.05.2018 at the time
of filing of replication. He submits that on study of documents
filed on 05.05.2018 necessity has arisen to file amended WS.
Shri Sharma on instruction from petitioner does not oppose the
same, however he submits that he may be granted an
opportunity to file amended replication. Shri Bhushan submits
that amended WS will be filed by 05.07.2018 with advance
copy to the other side. Amended WS be file on 05.07.2018,
replication thereafter be filed within two days. To appear before
the learned Local Commissioner on 09.07.2018. Shri Bhushan
undertakes that he will ensure the presence of respondent before
the local Commissioner on 09.07.2018.

09.07.2018

Present: Petitioner with learned counsel Shri Vijender Sharma
Respondent with Learned counsel Sh. Ravi Bhushan.

Replication filed. Copy furnished.

Sh. Bhushan has moved an application under order VIII
Rule 1 A (3) read with Section 151 CPC seeking to bringing on
record the documents. Shri Bhushan submits that these
documents have been referred in the amended WS, but could
not be filed along with amended WS as the same were not
available.

Shri Sharma has objected to the documents being taken on
record on ground that there is no justifiable explanation as to

MATA (FC) 182/2018 Page 9 of 15
why the same were not filed along with the amended WS,
though the same was referred to.

It is submitted that the respondent is only creating
circumstances for delay in disposal of the case.

I find merits in the submission of Shri Sharma. However
considering the fact that documents are referred in the amended
WS, same are permitted to be taken on record with a warning to
the respondent that any further conduct designed towards delay
of the disposal of the case shall call for adverse orders.
Documents are taken on record. Copy furnished.

Respondent has also moved an application under section
24 of HMA and an application under section 26 of HMA.
However, the application under Section 24 of HMA is not
accompanied with income and assets affidavit as provided for in
Kusum Sharma’s judgment.

Respondent’s right to claim maintenance shall commence
from the date complete application in compliance of Kusum
Sharma’s judgement is filed along with required documents and
copy is given to the opposite side.

At this stage an application under Order 47 CPC has been
moved seeking to recall the orders dated 05.05.2018 and
04.07.2018. Application is accompanied by another application
seeking condonation of delay in filing the application. Copy
furnished.

Shri Bhushan submits that on 05.05.2018 when order
appointing Local Commissioner was passed, he had not sought
the instructions from the respondent and made a statement
without respondent’s instructions. The respondent has now
instructed him not to agree for appointment of Local
Commissioner. Delay is sought to be condoned on the ground

MATA (FC) 182/2018 Page 10 of 15
that information were given by the Counsel to
applicant/respondent on 02.07.2018.

It is noticed that after appointment of Ld. Local
Commissioner, the matter has been taken up on two dates of
hearing. It is pointed out by Shri Sharma that application for
conducting proceedings in camera was also moved by Shri
Bhushan on 04.07.2018.

A study of the conduct of the respondent for the last few
days of hearing indicates that she is moving application after the
other and creating situations for delay in disposal of the main
case. Application for review of order dated 05.05.2018 is
evidently with the same design. The averments that the order
appointing Local Commissioner was not intimated to the
respondent till 02.07.2018 does not seem to be genuine and does
not appeal to the court. If that be so, the respondent is not
diligently pursuing her case. Proceedings of 05.05.2018 were
not enquired by her from counsel till as late as 02.07.2018. In
the modern time when the modes of communications transfer
information within seconds. This court will not accept this
arguments of the respondent. The application is, therefore, time-
barred. Further, there can be no valid objection of the
respondent in recording of evidence by Local Commissioner,
when the same is being done by an retired judicial officer of the
rank of Additional District Judge, who has had long experience
of recording evidence.

Section 21 (B) (2) of HMA mandates the court to decide
the petition expeditiously and to make and endeavour to
conclude the trial within six months. It may be noticed that this
court has pendency of about 2000 trials, in such circumstances,
the appointment of Local Commissioner for recording of
evidence is with the purpose of complying with the legislative
mandate as enshrined in the section 21 (B) (2) of HMA. There is

MATA (FC) 182/2018 Page 11 of 15
evidently no error on the record of the case, so as to call for
review.

It is further pointed out by Shri Sharma that learned Local
Commissioner shall be prejudicial to the interest of petitioner
who has already spent substantially for the said period. The
application is, therefore, dismissed on merits, as well as, on the
point of delay.

At this stage, Sh. Bhushan submits that dates fixed before
the learned Local Commissioner in this week be cancelled and
he shall make himself available for conducting cross
examination of the witness, in case he is afforded an
adjournment of 10-15 days. He further submits that parties are
trying to work out a settlement.

Shri Sharma on instructions from the petitioner does not
oppose the aforesaid prayer of Shri Bhushan. Let the matter be
listed before the learned Local Commissioner on 06th, 08th, 09th,
10th, 13th 14th August, 2018. Cross examination shall
commence from 11 AM onwards.

Learned Local Commissioner is requested to conclude the
petitioner’s evidence by the aforesaid date.

Now to come up before this Court on 18.08.2018.

6. Section 21B (1) and (2) of Hindu Marriage Act, 1955 read as under:

“21B. Special provision relating to trial and disposal of
petitions under the Act-

(1) The trial of a petition under this Act shall, so far as is
practicable consistently with the interests of justice in respect
of the trial, be continued from day to day until its conclusion
unless the court finds the adjournment of the trial beyond the
following day to be necessary for reasons to be recorded.

MATA (FC) 182/2018 Page 12 of 15

(2) Every petition under this Act shall be tried as expeditiously
as possible, and endeavour shall be made to conclude the trial
within six months from the date of service of notice of the
petition on the respondent.”

(Emphasis added)

7. Section 21B of the Hindu marriage Act relates to trial and disposal of
petitions under the Act. Sub-Section (2) provides that every petition
filed under this Act is to be treated expeditiously and endeavour should
be made to conclude trial within six months from the date of service of
the notice. It is in this backdrop Family Courts have been appointing
Local Commissioner for recording of the evidence and this case is no
exception.

8. The Local Commissioner was appointed by an order passed by the
Family Court on 05.05.2018. Reading of this order would show that
counsel for the respondent (appellant herein) before the Family Court
was present and his no objection for recording of evidence by the Local
Commissioner was noted. It was also noted that counsel for the
respondent (appellant herein) would seek instructions from the
respondent limited to the extent whether she would bear expenses for
her witnesses or not. A local commissioner was appointed. Thereafter,
on 03.07.2018 it was noted by the Family Court that although the
matter was listed before the Local Commissioner but the counsel for the
respondent (appellant herein) did not appear to cross-examine though
the dates were fixed with the consent and taking into consideration the
convenience of the parties and their counsel. The matter was then
passed over to be taken up at 2 p.m. The Family Court did not pass any
adverse orders but adjourned the matter for 04.07.2018 for 11 a.m.

MATA (FC) 182/2018 Page 13 of 15
before the Local Commissioner. The order of 03.07.2018 of the Local
Commissioner is self-explanatory which shows that the respondent
(appellant herein) did not appear to cross examine the witnesses. On
03.07.2018 fresh dates were fixed i.e. 04.07.2018, 09.07.2018,
10.07.2018, 11.07.2018, 12.07.2018 and 13.07.2018 with the consent of
the parties. On 04.07.2018 another application was filed by the
respondent (appellant herein) under Section 11 of the Family Courts
Act for holding camera proceedings. Even at that stage, the appointment
of Local Commissioner was not challenged. The application was
allowed. The counsel for the respondent/applicant (appellant herein)
had tendered his apology for the conduct of his proxy counsel. Another
application seeking amendment to the written statement was also filed,
which was also allowed. On 09.07.2018, a Review Petition was filed.
The counsel for the respondent/appellant had informed the Family
Court that the consent given by him for appointment of a Local
Commissioner, was without any instructions and he sought recall of the
order. However, in the latter part of the order, the counsel had
submitted that date fixed before the Local Commissioner be cancelled
but he would make himself available for conducting cross-examination
of the witnesses and prayed for an adjournment of 10 to 15 days. This
prayer was not opposed and fresh dates were fixed for 06 th, 08th, 09th,
10th, 13th 14th of August, 2018 for recording of evidence. We have
reproduced the relevant orders which would clearly establish that after
the issues were framed on 5.5.2018 and a Local Commissioner was
appointed to record the evidence, the appellant herein made at least
three applications and finally an application was made seeking review

MATA (FC) 182/2018 Page 14 of 15
of the order dated 5.5.2018. Post-dismissal of the review application on
the same date, the counsel for the appellant sought cancellation of the
dates fixed and sought adjournment for 10 to 15 days on the ground that
parties are trying to work out a settlement.

9. The judgment rendered in Pushpa Devi’s case (supra) does not apply to
the facts of the present appeal. In our view, every effort was made to
somehow delay the trial in the matter. Additionally, it is established
that the Local Commissioner was appointed with the consent of the
counsel for the appellant. We see no infirmity in the impugned order,
the present appeal is without any merit and the same is accordingly
dismissed.

10. However, keeping in view the submissions made and scandalous
allegations against the appellant, we deem it appropriate to appoint a
lady Local Commissioner. We have asked the parties if they have any
suggestion, to which they have stated that they will leave it to the Court.
Accordingly, we appoint Mrs. R.Kiran Nath, District Sessions Judge.
All the dates fixed in the matter i.e. 08th, 09th, 10th, 13th 14th of
August, 2018 (except for today i.e. 06.08.2018) shall remain fixed.

11. Copy of order be given Dasti to the parties under signature of the Court
Master.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J

AUGUST 06, 2018/rb

MATA (FC) 182/2018 Page 15 of 15

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