It is in discretion of Court whether Commissioner is to be examined as Court witness or partys witness.

1. The Defendant is the Revision Petitioner. Application for appointment of Advocate Commissioner filed by the Revision Petitioner/ Defendant in I.A. No. 1277/2005 in O.S. No. 1125/2000 was allowed by the Principal District Munsif Court, Madurai by the order dated 19.1.2006. Though the Petition was allowed, the Petitioner has preferred this Revision on the ground that the Court has declined to examine the Commissioner as Court Witness but directed that the Commissioner be examined as witness on the Petitioner's side.

2. Suit O.S. No. 1125/2000 was filed by the Respondent Plaintiff for Permanent Injunction restraining the Defendant from proceeding with the construction in the 'C' Schedule Property. In the I.A. No. 1134/2000, Commissioner was appointed and the Commissioner has filed his Report. The Defendant has filed his objections to the Commissioners Report. The Revision Petitioner-Defendant has also filed I.A. No. 589/2003 to scrap the Advocate Commissioner's Report and appoint a new Advocate Commissioner. That Petition was dismissed by the order dated 25.04.2005. Against that order, the Revision Petitioner had earlier preferred C.R.P. No. 645/2005. That Revision was dismissed by the order dated 23.11.2005 holding that-

"it is open to the Petitioner to examine the Advocate Commissioner focussing on the objections pointed out."

3. The trial commenced-Witnesses are being examined. When the case was posted for Defendant's evidence, at that stage, the Revision Petitioner Defendant had filed I.A. No. 1277/2005 to examine the Commissioner as witness. By the impugned Order, the Trial Court has allowed the Application, however directing that the Commissioner be appointed as the Defendant's evidence. The Trial Court has held that the Commissioner could be examined on behalf of the Defendant's side and the Defendant could cross-examine the Commissioner under Section 154, Indian Evidence Act.

4. Aggrieved over the finding of the Trial Court directing examination of the Commissioner on the Defendant's side, the Revision Petitioner Defendant has preferred this Revision. The learned Counsel for the Revision Petitioner has contended that the Commissioner has to necessarily be examined as the Court Witness and the Defendant could only cross-examine the Commissioner who is a Court Witness. Drawing the attention of the Court to Order 16, Rule 14, C.P.C. the learned counsel for the petitioner submitted that the Court has ample powers under Order 16, Rule 14, C P.C. to examine the witnesses and in appropriate cases, the Court itself is to summon the Court Witness if it thinks that the ends of justice require. So, it is further submitted that the Trial Court erred in saying that the Commissioner could be examined only as a witness on the Defendant's side. It is further submitted that since the Defendant had earlier filed I.A. No. 589/2003, to scrap the report of the Advocate Commissioner, if the Commissioner is to be examined as the Defendant's witness it would cause great hardship to the Defendant and hence seeks for modification of the impugned Order. In support of his contention, the learned counsel for the petitioner relied upon K.C. Palanisanty v. M. Chinnasamy and 16 others, 2002 (4) CTC 222 and R.M. Seshadri v. G. V. Pai, AIR 1969 SC 692.

5. Since, the suit is pending part heard in the Trial Court, without wasting time in ordering Notice, the matter was taken up for hearing in the admission stage. Mr. M. Ramadoss has been appointed as amicus curiae to assist the Court. Placing reliance upon AIR 1976 SC 294, the learned amicus curiae has submitted that under Section 154, Indian Evidence Act, a party can very well cross-examine their own witness and the Revision Petitioner can very well cross-examine the Commissioner. The learned amicus curiae has further submitted that under Order 26, Rule 10(2), C.P.C., report of the Commissioner is already the evidence and forms part of the record and the Commissioner need not any further be calle