JUDGMENT S.U. Kamdar, J.
1. The present Notice of Motion has been taken out for a direction to determine the admissibility of all the documents which are sought to be produced by the plaintiffs through their witness Mr. S.K. Agarwal before the Commissioner. Some of the relevant facts of the present case are as under:
2. The plaintiffs have filed a suit for recovery of sum of Rs. 8,39,14,843/-plus US $ 45,26,707.88 plus US $ 12,340 with interest thereon @ 18% p.a. The said suit was referred to the Commissioner for recording evidence by an order dt.23.10.2002 passed by this Court and Ms. Madhavi Diwan practising Advocate of this court was appointed Commissioner with further direction that parties to file affidavit of evidence within a period of 2 weeks. The said order dt.23.10.2002 specifically provides as under:-
3. "The Commissioner shall comply with all the other provisions of the applicable rules contained in Order 18 and in particular, shall record any objection which is raised before him. The objections, if any, shall be determined by the court at the trial of the suit."
4. Thereafter the matter was placed before the learned single Judge of this Court on 21.1.04 when due to the delay in proceeding, the appointment of Commissioner was cancelled. However, the learned single Judge gave an opportunity to apply once again for appointment of Commissioner after completion of inspection. Chamber Summons No.304 of 2004 was specifically taken out for reappointment of commissioner since inspection was complete and by order dt.11.6.04 this court granted the said Chamber Summons in terms of prayer clause
(a) and the Commissioner was directed to commence the evidence from 15.7.04. While passing the said order this court passed the following order.
5. "The parties are at liberty to file documents before the learned Commissioner who shall take them on record provisionally. The affidavit of subsequent witnesses shall be tendered subsequently."
6. Pursuant to this order dt.11.6.04 the Commissioner appointed by this court under the Original Order dt. 23.10.02 recommenced the conducting of evidence. In pursuance of the said order passed by the court, the plaintiff has filed an affidavit of one Mr. S.K. Agarwal affirmed on 16.7.04 as examination-in-chief. Alongwith the said affidavit various documents are produced in support of the case of the plaintiff. On 15.2.05, the Advocate for the Defendants informed the Advocate for the Plaintiffs that the defendants are objecting to the production of the various documents by the said witness Mr. S.K. Agarwal in support of this affidavit in evidence on the ground that the said documents are neither original nor the person producing the same is author of the said documents. On 18.02.2005 the Advocate for the plaintiffs replied that they will produce the original documents to the extent they were available with them at the time of recording of the evidence of the witness and that the defendants are at liberty to object to the documents produced by the plaintiffs as they may desire.
7. In the meantime, the tenure of the Commissioner expired and the application was made by the plaintiffs before this Court for extending the term of the Commissioner for a further period of 12 weeks. By an order dt.17.3.05 this court extended the term of the Commissioner for further period of 12 weeks. Thereafter the Commissioner produced the matter for cross-examination on 19.04.2005 and 20.4.2005. At that stage, the defendants objected to any of the documents being marked as Exhibit on the ground that they are not admissible in evidence because they are not produced by the author of the documents and that the many documents are not the originals. The learned Commissioner has recorded the aforesaid objections of the defendants and has proceeded with the cross-examination of the said witness on 19.4.05. The learned Commissioner has conducted the said cross-examination of the witness and the objection of the defendant has been recorded for the purpose of determination of the said by the court at the hearing of the suit. The Defendant has thereafter filed the present Notice of Motion on 28.05.2005 interalia seeking a direction that this court at this stage itself must determine the admissibility of all the documents which are sought to be produced by the plaintiffs through their witness Mr. S.K. Agarwal. The present Notice of Motion was placed before me for hearing and final disposal.
8. The learned counsel appearing for the defendants appearing in support of the present Notice of Motion has interalia contended that under the provisions of Order 18 Rule 4 of the Civil Procedure Code, this court must decide the admissibility of the evidence and the Commissioner cannot decide the same nor this court can postpone the decision on the admissibility of evidence till the entire evidence is completed before the Commissioner. In support of the aforesaid contention, the learned counsel has relied upon the Judgment of this Court in the case of Bharat R. Desai and Anr. v. Naina Mohanlal Bhal reported in 2004(12) BOM.CR 695. The learned counsel has relied upon paragraph 4 and 5 of the aforesaid Judgment. It has been contended by relying on the aforesaid Judgment that in the present Notice of Motion I should first determine the admissibility of the documents produced by the witness of the plaintiffs at this stage itself and before the Commissioner continues with the further cross-examination of the said witness. The learned counsel for the defendants on the other hand has objected to the present Notice of Motion and he has contended that infact the cross-examination is already in progress and this court should not interfere at this stage and held up further evidence before the Commissioner.
9. I have heard the rival contention of both the parties. I am not inclined to grant the present Notice of Motion by determining the admissibility of evidence which are produced before me at this stage for more than one reason. Firstly, because in my opinion under the provision of Order 18 Rule 4 of the Civil Procedure Code, the Commissioner has ample power to record objection and that objection can be heard and determined at the stage of arguments. Order 18 Sub Rule 4 of the Civil Procedure Code 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 alongwith affidavit shall be subject to the orders of the Court.
(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.
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.
(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 and18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.
10. Reliance placed by the learned counsel on the aforesaid judgment in my opinion has no application in the present case. Firstly, because in the present case, both at the time of initial order of 23.10.2002 and at the time of 2nd order dt.11.6.04, the learned single Judge while appointing the Commissioner has empowered him to proceed with the Commission by recording objection if any of the parties and the said objection will be heard and determined at the hearing of the suit. The learned single Judge in his order dt.23.10.2002 has stated that the Commissioner shall record objection if raised before him as same shall be determined by the court at the trial of the suit. Similarly, in an order dt. 11.6.04 also the learned single Judge has recorded that the parties are at liberty to file documents before the learned Commissioner who shall take them on record provisionally meaning thereby that the objection if any can be heard at the hearing of the suit. In view of the specific order passed in the present case which have achieved finality I do not find as correct exercise of power to upturn the already two orders passed by the learned single Judge in this matter itself which is binding on the parties and determine the admissibility of all the evidence produced by the plaintiff which are at this stage, by relying upon the Judgement of the learned single Judge of this Court in the case of Bharat R. Desai and Anr. v. Naina Mohanlal Bhal reported in 2004(12) BOM. CR 695. It is well settled that in the interse orders between the parties which have achieved finality cannot be overturn at the subsequent stage of the proceedings by relying upon the judgment pronounced in some other case.
11. The second reason in my opinion why the aforesaid judgment has no application to the facts of the present case is because the judgment proceeds on the footing that at the time of passing of the order of the appointment of Commissioner the affidavit of examination-in-chief should be filed and the court must undertake the exercise of determination of the admissibility of the documents and thereafter refer the matter to the Commissioner for the purpose of conducting the cross-examination. In this case the order of the Commissioner is factually passed by giving the contrary direction by the learned single Judge on both the occasions. The stage in the present proceeding is not the stage of appointment of Commissioner but the Commissioner has already seized of the matter and the recording of evidence by him is in progress. Thus, in the present case, the stage envisaged by the court to determine the admissibility of the evidence in the aforesaid judgment is already over. is conducting the evidence.
12. In my view to interfere at this stage and proceed to determine the admissibility of each of the documents produced by the plaintiffs in the court would unnecessary cause delay in conducting evidence before the Commissioner and it would defeat the purpose of appointment of Commissioner which is an expeditious trial and expeditious recording of evidence. Further, in my opinion, the provision of sub rule 4 of Order 18 specifically empowers the Commissioner to refer the objection if raised before him pertaining to the admissibility of any of the documents and thereafter the same can be heard and determined by the court at the stage of trial. In my opinion, to follow the case suggested by the Court in the aforesaid judgment of Bharat R. Desai (Supra) would result in undue delay in trial because at every stage when a witness is produced before the Commissioner and documents produced a party will apply to the court by way of Notice of Motion to determine the admissibility of evidence. As is the position in the Court today a notice of motion approximately takes 2 years to decide thus, the evidence before the Commissioner will be stalled rather then completed expeditiously. In my opinion, thus, the provision of Order 18 Rule 4 Sub-Rule (4) has been advisedly introduced by an amending Act of 2002 interalia empowering the Commissioner to record objection raised by the parties pertaining to admissibility of evidence and determine the same by the court at the hearing of the suit. In view thereof, I am not inclined to pass any orders in the present Notice of Motion and undertake the exercise of determining the admissibility of documents in this stage. The Commissioner will proceed with the evidence of recording the objection and the validity of objection will be determined at the trial of the suit. Motion is accordingly dismissed. There shall be no order as to costs.