The Delhi High Court, hearing a petition under Article 227, held that the Family Court’s power to appoint a Local Commissioner under CPC Order XXVI Rule 4A is not limited by the parties’ consent and that such appointment can be reviewed independently of the transfer petition proceedings.
Background & Facts
The Dispute
The petitioner, Dr. Achintya Sharma, challenged an order dated 27 July 2026 passed by the Principal Judge of the Family Court, South District, Saket Courts, New Delhi, in Transfer Petition No. 6/2026. The challenge centred on the Family Court’s directions and observations regarding the appointment of a Local Commissioner (LC) in the underlying family dispute.
Key Facts
- The Family Court, on 18 May 2026, issued an order appointing a Local Commissioner to record evidence.
- The petitioner argued that the Family Court relied on the Full Bench judgment in Pushpa Devi v. Bimala Devi & Ors. despite the amendment to the Code of Civil Procedure (CPC) effective 1 July 2002, which introduced Order XXVI Rule 4A.
- Order XXVI Rule 4A states that a court may, in the interest of justice, issue a commission for examination of any person resident within its jurisdiction, without requiring the parties’ consent.
- The petitioner contended that the Family Court exceeded its jurisdiction under Section 24 CPC, which is limited to deciding whether proceedings should be transferred, not to adjudicating the validity of the LC appointment.
- The respondent, Dr. Sitanshi Sharma, maintained that the petition was confined to the transfer issue and that the observations on the LC were part of the reasoning, not a separate adjudication.
- The respondent had already filed a Review Application on 11 June 2026 against the LC appointment.
Procedural History
- 18 May 2026: Family Court appoints Local Commissioner (order dated).
- 27 July 2026: Principal Judge, Family Court, passes impugned order in Transfer Petition No. 6/2026.
- 11 June 2026: Respondent files Review Application against the LC appointment.
- Date not specified: Petition filed before the Delhi High Court under Article 227 challenging the impugned order.
- 17 August 2026: Delhi High Court delivers judgment disposing of the petition.
Parties' Positions
- Petitioner: Argues that the Family Court’s reliance on Pushpa Devi is misplaced; the appointment of LC does not require consensus ad idem and the Family Court exceeded its jurisdiction.
- Respondent: Asserts that the petition is limited to the transfer issue; the LC appointment observations are merely part of the reasoning and any review of the LC appointment is already pending.
Relief Sought
The petitioner sought clarification that the appointment of the Local Commissioner could be reviewed independently of the transfer petition and that no interim protective directions were warranted.
The Legal Issue
Whether the Family Court, while entertaining a transfer petition under Section 24 CPC, can appoint a Local Commissioner under Order XXVI Rule 4A without the parties’ consent, and whether such appointment falls within the court’s jurisdiction.
Arguments Presented
For the Petitioner
- Relied on the text of Order XXVI Rule 4A, emphasizing that it expressly allows a court to issue a commission “in the interest of justice” irrespective of any agreement between the parties.
- Cited the amendment to the CPC effective 1 July 2002, arguing that the earlier Full Bench precedent is superseded.
- Contended that Section 24 CPC limits the Family Court’s jurisdiction to the question of transfer, not to the validity of ancillary orders such as the appointment of an LC.
For the Respondent
- Maintained that the petition’s scope is confined to the transfer issue and that the observations on the LC are part of the reasoning, not a separate adjudication.
- Pointed out that a Review Application had already been filed on 11 June 2026, rendering any further interim relief unnecessary.
- Asserted that Paragraph 23 of the impugned order merely informs the parties of their right to seek review and does not create a substantive right to appeal.
The Court's Analysis
The Court first noted that the challenge was “fairly limited” and that both parties were in agreement that the matter could be disposed of with a clarification. It examined the language of Order XXVI Rule 4A, which empowers a court to issue a commission for examination of any person within its jurisdiction “in the interest of justice or for the expeditious disposal of the case or for any other reason”. The Court held that this provision does not condition the appointment on the parties’ consent, thereby rejecting the petitioner’s contention that “consensus ad idem” is required.
The Court further observed that the Family Court’s jurisdiction under Section 24 CPC is indeed limited to deciding whether the proceedings should be transferred. However, the appointment of a Local Commissioner, being a procedural tool to facilitate evidence collection, falls within the broader discretion of the court to ensure expeditious disposal, and therefore does not exceed its jurisdiction.
The Court also addressed the respondent’s argument that the observations in the impugned order constitute part of the reasoning rather than an independent adjudication. It concluded that even if they are part of the reasoning, they do not preclude a separate review of the LC appointment. Consequently, the Court clarified that any review or appeal concerning the LC appointment dated 18 May 2026 shall be considered independently and in accordance with law, without being influenced by the observations in Paragraphs 17, 18, 19 and 23 of the impugned order.
"any proceedings by way of a Review Application or an appeal, or any other appropriate proceedings, concerning the Order dated 18.05.2026 appointing the LC shall be considered independently and in accord ance with law, uninfluenced by the observations contained in Paragraph Nos. 17, 18, 19 and 23 of the Impugned Order."
The Court therefore disposed of the petition, granting the clarification sought and declining to issue any interim protective directions.
The Verdict
The Delhi High Court dismissed the petition, confirming that the appointment of a Local Commissioner under Order XXVI Rule 4A does not require the parties’ consent and that any review or appeal concerning that appointment shall be dealt with independently of the transfer petition. No interim relief or costs were awarded.
What This Means For Similar Cases
Appointment of LC Is Discretionary, Not Consent-Based
- Lawyers can rely on Order XXVI Rule 4A to argue that a court may appoint a Local Commissioner even if the parties disagree.
- The requirement of “consensus ad idem” is not a condition for such appointments.
Transfer Petitions Remain Limited to Section 24 CPC
- Counsel should confine arguments in transfer petitions to the question of transfer; ancillary procedural orders can be challenged separately.
- Any challenge to the validity of a Local Commissioner appointment must be pursued through a distinct review or appeal.
Review Applications Remain Viable
- Parties may file a Review Application or appeal against the LC appointment without prejudice from the transfer petition’s observations.
- Courts will consider such reviews independently, ensuring that procedural safeguards are not bypassed.
Practical Takeaways
- Cite Order XXVI Rule 4A verbatim when arguing for the appointment of a commission.
- Avoid conflating the scope of Section 24 CPC with ancillary procedural powers.
- File separate review applications promptly; the High Court’s clarification underscores that pending reviews are not stayed by transfer-petition orders.
