2019 (2) TMI 1953 - HC - Indian Laws

Seeking for appointment of Court Commissioner for measurement of the Abadi land - requirement for proper adjudication of the suit - Order XXVI Rules 10 (2) and (3) of the CPC - HELD THAT - A plain reading of Order XXVI Rules 10 (2) and (3) of the CPC particularly subrule (2) thereof shows that the report of the Court Commissioner and the evidence taken by him must be taken as evidence on record of the trial Court. But it cannot be said to be conclusive and with permission of the Court any of the parties to the suit can examine the Commissioner as regards any matter touching upon the facts mentioned in the report of the Commissioner. In this context if the impugned order is perused it appears that although the trial Court was certainly aware about the position of law in the context of Order XXVI Rule 10 of CPC while applying the same to the present case the trial Court committed an error. There appears to be self contradiction in the impugned order. It appears that the trial Court was aware about the fact that the objection was raised on behalf of the petitioners to the report of the Court Commissioner but the same had been rejected by order dated 22/12/2017. The rejection or otherwise of the objection raised on behalf of the petitioners would not have any affect on the right of the petitioners to examine the Court Commissioner under Order XXVI Rule 10 of the CPC. The fact that the petitioners objected to the report of the Court Commissioner does show that they had refused to accept the same. Therefore they were entitled to cross examine the Court Commissioner. This aspect of the matter was not correctly appreciated by the trial Court while passing the impugned order. The present Writ Petition is allowed and the impugned order is quashed and set aside and the application filed by the petitioners for permission to examine the Court Commissioner is allowed in terms of the prayer made therein.

Summary

Issues:
Challenge to order appointing Court Commissioner for measurement of 'Abadi' land, rejection of objection to Court Commissioner's report, rejection of application to cross examine Court Commissioner under Order XXVI Rule 10 of CPC.

Analysis:
1. The petitioner challenged the order passed by the trial Court regarding the appointment of a Court Commissioner for the measurement of 'Abadi' land, which was deemed necessary for the adjudication of the suit. Initially rejected, the petitioners' application was later allowed by the High Court. The Court Commissioner conducted the measurement and submitted a report, to which the petitioners objected. The trial Court rejected the objection and also the petitioners' application to cross-examine the Court Commissioner under Order XXVI Rule 10 of CPC.

2. The petitioners contended that there was a contradiction in the trial Court's findings and argued that they were entitled to examine the Court Commissioner based on the provisions of Order XXVI Rules 10 (2) and (3) of the CPC. The respondents, however, argued that the objection was baseless as per the Court Commissioner's report and the trial Court's order, which was never challenged by the petitioners.

3. The Court examined Order XXVI Rule 10 of the CPC, emphasizing that the report of the Court Commissioner and the evidence taken by him are part of the trial record. The parties can examine the Commissioner with the Court's permission regarding matters mentioned in the report. Citing a judgment, the petitioners argued that they had the right to cross-examine the Court Commissioner.

4. The Court referred to a judgment relied upon by the petitioners, highlighting that the appointment of a Court Commissioner assists in arriving at a just decision, and the report is not conclusive. The trial Court's rejection of the application to examine the Court Commissioner was deemed erroneous, as the petitioners' objection to the report indicated their refusal to accept it, entitling them to cross-examine the Commissioner.

5. Consequently, the Court found the trial Court's order unsustainable and allowed the Writ Petition, quashing the impugned order and granting permission to examine the Court Commissioner. The trial Court was directed to expedite the disposal of the suit within a year from the judgment date.