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TMI Blog2019 (2) TMI 1953X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the petitioners was necessary for proper adjudication of the suit. Although initially the said application was rejected by the trial Court, Writ Petition No.1054 of 2015, filed by the petitioners before this Court for appointment of Court Commissioner and measurement of Abadi land, stood allowed. Pursuant thereto, the Court Commissioner i.e. the Taluka Inspector of Land Records, conducted the measurement and submitted his report dated 13/10/2017. The petitioners filed their objection to the aforesaid report below Exhibit 128. The said objection was rejected by the trial Court by order dated 22/12/2017. Thereafter, the petitioners filed application for grant of permission to cross examine the Court Commissioner under Order XXVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit.The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in personWhere the Court is for any reasons dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sexamine the Court Commissioner, so as to challenge the veracity of the report." 7. 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 at paragraph 4, which reads as follows : "4] The perusal of record reveals that, as per application Exh.131 the plaintiffs had taken abjection to the court commissioner's report Exh.128 merely on the same grounds mentioned in the present application. It reveals that as per order dated 2/12/2017 application/abjection vide Exh.131 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, the court has no other option but to examine the commissioner." 8. 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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