Looking at the high backlog of cases in the Bombay High Court, some of which date back to 1980s, the Bombay High Court has ruled that a court commissioner has the power to record evidence of witnesses.
Justice D.G. Karnik ruled that an independent advocate appointed as a court commissioner can record the evidence and the cross examination of witnesses through an affidavit.
The judge said, “Considering the present strength of the judges, it would be impossible to expeditiously hear the cases if the task of recording the evidence in every case is also to be performed by the judge.” Therefore, giving this power to the court commissioner would take the load off the judge, speeding up case hearings.
The court commissioner will record the examination and the cross examination of witnesses and submit a report to the high court. The High Court would then pass the order based on the report of the commissioner.
“The fact cannot be ignored that cases which have been instituted in the 8th and 9th decades of the previous century, are still pending in this court for adjudication. Though the situation in the district and civil courts is slightly better, a number of cases are pending there as well,” said Justice Karnik.
The ruling came during the hearing of a case filed by Shirish Shah who contested the will left by his father in 2004.
Shirish who had settled in the US, contested the contents of the will and opposed the application filed by his brother, Arun, in the high court to validate the will.
Shirish’s advocate, Ajay Panicker, had contended that the commissioner did not have the power to record the evidence of a witness on affidavit.
According to Panicker, the affidavit has to be first tendered in court and only then can the matter be referred to the court commissioner for the cross examination.
Disagreeing with the arguments, Justice Karnik said that an amendment to the Civil Procedure Code in 2002 mandates that the examination of a witness will not be recorded in person but can be recorded on affidavit.
Now a litigant can make an application before the judge seeking to appoint a court commissioner to record evidence.
“The cases will be disposed of faster than when a single judge sits and records evidence of one case over a period of two or three days. Even those people, who have filed suits in 2009 or 2010, can make an application before the court for appointing a commissioner and their cases would then be disposed of faster,” said Panicker.