A party in whose favor a civil court commissioner's report is submitted has a right to re-examine the commissioner to clarify contradictions and ambiguities in the statements made during cross-examination.

JUDGMENT :

K.P. Mohapatra, J. - The Plaintiff in Title Suit No. 190 of 1983 pending in the Court of Munsif, First Court, Cuttack is the Petitioner. He has challenged the order passed by the ?learned Court below refusing his petition to re-examine the civil Court Amin for clarification of ambiguities with regard to statements made in cross-examination by the opposite party who is the Defendant in the suit.

2. The Petitioner has filed the suit for declaration of his title and recovery of possession in respect of 0.01 4 acre out of plot No. 211 fully described in Schedule ?A? of the plaint with other consequential reliefs on the ground that the opposite party having no title in respect thereof has encroached upon it and has dispossessed him. For elucidation of the fact in dispute a civil Court Amin was deputed for local investigation. After local investigation, the civil Court Amin has reported that the suit land appertains to plot No. 211. As the report goes against the opposite party, he summoned the civil Court Amin for cross-examination. In cross-examination the Amin made some contradictory statements which are illustrated below. In part-5 he stated. ?I have measured the suit land from Ext. 5?. In the same para he stated ?1 cannot measure the suit land from Ext. 5?. In para-7 he stated. ?I have not measured the vacant land.? In the same para he stated. ?1 have measured the area of houses of different persons vacant land and the passage in plot No. 211?. In para 6 he stated. ?I have not measured any boundary of plot No. 211 to ascertain the correctness of plot No. 211 as it is not necessary?. But in para 7 he stated, ?1 have measured t h{: entire plot No. 211?, The Petitioner filed a petition before the learned Munsif in order to permit him to clarify the ambiguous statements by putting questions in re-examination. But the learned Munsif seems to have taken the view that because the petition did not contain illustrations of the contradictory and the ambiguous statements, it was not possible to permit reexamination of the civil Court Amin.

3. While Mr. S. Misra-I, learned Counsel for the Petitioner, urged that the contradictory and ambiguous statements require clarification, Mr. R. N. Panigrahi, learned Counsel for the opposite party opposed and contended that by way of reexamination the effect of cross-examination cannot be nullified.

4. It is well settled that the report of a civil Court Commissioner is only a piece of evidence to be taken into consideration by the Court along with other evidence. Since the report of the Commissioner has the sanctity of evidence in law, it should be free from any ambiguity and should be really helpful to the Court in deciding the issues in dispute between the parties. This apart, the Court is charged with the duty of arriving at the truth on consideration of the evidence placed before it. 1? the evidence placed before it is ambiguous, it may not be possible on its part to arrive at the truth. Therefore, even if the learned Munsif was not inclined to permit the Petitioner to clarify the contradictory and ambiguous statements for the purpose of ascertaining the actual facts relating to the local investigation, it was his duty to clarify the contradictory and ambiguous statements himself by putting specific questions to the civil Court Amin. After all, the Court cannot act as a passive agent while recording evidence. He must be active and watchful and take real interest in the proceedings.

5. Mr. Panigrahi, raised a point by making reference to Sections 137 and 138 of the Evidence Act which provide for examination in chief, cross-examination and re-examination. According to him, the Petitioner did not cross-examine the civil Court Amin and so the question of permitting him to re-examine him did not arise. The point raised requires a little bit of examination in the light of practice and precedent in trial Courts of the State relating to examination of civil Court Commissioners. The general practice i