1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.6303 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.L.V.Sangeet, advocate for the petitioner. Mr.V.D.Hon, advocate for the Respondent. CORAM : S.V.GANGAPURWALA,J. Date : 25.08.2011. 1. Heard. 2. The petitioner impugns the order passed by the Assistant Charity Commissioner, directing recording of evidence i.e. cross-examination by commission. The said order is assailed in the present Writ Petition. 3. Mr.Sangeet, learned counsel submits that the ingredients of Order XXVI Rule 1 of the C.P.C. are not satisfied while passing the impugned order. The grounds stated in the application for appointment of Commissioner to record evidence does not inspire confidence. The 2 same are false grounds. According to the learned counsel the objection raised by the petitioner was not at all considered. Even though reasons are not given for non-consideration of the objection of the petitioner, order XXVI Rule 1 of the C.P.C. can not be resorted as a matter of course. The learned counsel submits that the sanctity attached for the examination of the witness in the Court has its own efficacy and significance. Order XXVI Rule 1 of the C.P.C. can be exercised only if the person is resident of local limits of his jurisdiction and not beyond that. In the present case, the evidence of the witness is to be recorded at Mumbai. The Assistant Charity Commissioner at Jalgaon could not have passed an order to record the evidence of witness at Mumbai, even as per Order XXVI Rule 1 of the C.P.C. 4. No doubt, if order XXVI Rule 1 of the C.P.C. is strictly applied, the petitioner would be justified in submitting that the said order is beyond the jurisdiction of the Assistant Charity Commissioner but in view of the provisions of 3 Order 18 Rule 4(2) of the C.P.C., it is the discretion of the authority to examine the witness through Commissioner or by the Court. Though the authority has not referred to the provisions of Order XVIII Rule 4 of the C.P.C. while passing the impugned order, still, as the said provisions gives discretion to the Court to examine the witness on Commission by a Commissioner and the Court while passing the order has nowhere stated that the demeanour of the witness is to be recorded. In such circumstances, even though the order may not be sustainable U/o XXVI Rule 1 of the C.P.C. but still as order XVIII Rule 4 gives the discretion to the authority to examine the witness by Commission. The said discretion exercised need not be interfered with. Even the Full Bench of this Court in a case of "Harish Vithal Kulkarni and another Vs. Pradeep Mahadev Sabnis and Sudha Mahadev Sabnis" reported in 2010(1) Mh.L.J. 402, has held that it is the discretion of the authority or the Court either to examine the witness through Commissioner or by itself. 4 5. In light of the above, the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.25.08.2011. asp/office/wp6303.11