Case Note & Summary
The reference before the Division Bench arose from an order dated 4 July 2012 of a learned Single Judge (B.R. Gavai J.) in Suit No.550 of 2003. The suit was filed by Ayushakti Ayurved Pvt. Ltd. against Hindustan Unilever Limited. On 16 September 2011, another learned Single Judge (S.J. Vazifdar J.) had passed an order appointing an Advocate Commissioner for recording evidence, with parties at liberty to raise objections before the Commissioner and cross-examine witnesses without prejudice. Similar orders were passed in other suits. Subsequently, Justice S.C. Dharmadhikari recalled such orders, including an order dated 7 May 2012 in Suit No.2064 of 2005, holding that such orders were contrary to law and per incuriam. The Division Bench examined whether a coordinate Bench could recall an order passed by another coordinate Bench. The court held that an order appointing a Commissioner without recording reasons is not in conformity with Order XVIII Rule 4 CPC, but it is not per incuriam. A subsequent Judge cannot recall such orders as they are not per incuriam. The court set aside the orders recalling the appointment of Commissioner and restored the original orders.
Headnote
A) Civil Procedure - Recording of Evidence on Commission - Order XVIII Rule 4 CPC - Appointment of Commissioner - The court held that an order appointing a Commissioner for recording evidence without recording reasons is not in conformity with Order XVIII Rule 4 CPC, but such orders are not per incuriam. The subsequent Judge cannot recall such orders as they are not per incuriam. (Paras 1-12) B) Civil Procedure - Per Incuriam - Inherent Powers - Recall of Orders - The court held that a coordinate Bench cannot recall an order passed by another coordinate Bench unless it is per incuriam or based on a mistake of law. The orders recalling the appointment of Commissioner were set aside. (Paras 1-12)
Issue of Consideration
Whether a learned Single Judge can recall an order appointing a Commissioner for recording evidence passed by another Single Judge of coordinate jurisdiction, and whether such orders are per incuriam.
Final Decision
The Division Bench set aside the order dated 7 May 2012 and similar orders recalling the appointment of Commissioner, and restored the original orders appointing Commissioner for recording evidence.
Law Points
- Order XVIII Rule 4 CPC
- recording of evidence on commission
- per incuriam
- inherent powers of court
- recall of orders
