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2018 Supreme(P&H) 2873
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Amit Rawal
Civil Revision No. 7354 of 2011 (O&M)
Ram Asra
v.
Suraj Bhan & Ors.
{Decided on 11/12/2018}
Mr. Navneet Singh, Advocate for respondent No.12.
Mr. Sandeep Kumar Sharma, Advocate for respondents No.1 to 6 and 11.
Mr. Parveen Kumar Rohilla, Advocate for respondent No.13.
Local Commissioner--O.26 R.10(2) CPC empower the party to seek assistance of Court for cross-examination of the Local Commissioner as in the absence of such prayer, report is per se admissible
Headnote:
Civil Procedure Code, 1908, O.26 R.10--Local Commissioner--Cross-examination of--O.26 R.10(2) CPC empower the party to seek assistance of Court for cross-examination of the Local Commissioner as in the absence of such prayer, report is per se admissible--Trial Court remained oblivious of the fact that objections are not matter of record, rather not maintainable--Application allowed. (Para 2, 6 & 7)
Key Points: - The Court held that Order 26 Rule 10(2) CPC empowers a party to seek assistance of the Court for cross-examination of the Local Commissioner; without such prayer, the report is admissible per se. (!) [23000711700005] - Objections to the Local Commissioner’s report are not themselves part of the record and are not maintainable for denying cross-examination; the remedy is to allow cross-examination, as the right is recognized by statute. [23000711700005] - The impugned order rejecting the cross-examination application was set aside, and the applicant’s cross-examination of the Local Commissioner was allowed. [23000711700006] - The background involved a decree for permanent injunction with Local Commissioner-appointed in execution proceedings, and objections to the report were dismissed on a prior date, leading to the challenge. [23000711700001] - The court’s interpretation relies on the statutory provision that allows examination of the Commissioner in person in court regarding matters in his report or the manner of investigation. (!)
How to exercise cross-examination of the Local Commissioner under Order 26 Rule 10(2) CPC?
What is the effect of objections to the Local Commissioner’s report on the right to cross-examination?
What is the remedy when the trial court rejects a cross-examination application under Order 26 Rule 10(2) CPC?
JUDGMENT
Mr. Amit Rawal, J. (Oral):- The present revision petition is directed against the impugned order dated 19.04.2011, whereby, application of the petitioner/decree-holder for cross-examination of the Local Commissioner, has been rejected.
2. The petitioner-decree holder instituted a suit for permanent injunction against the respondents regarding the plot nos.664 and 665 which was decreed on 22.10.1992 and in the execution proceedingsa, Local Commissioner was appointed, who submitted his report. The decree-holders are stated to have submitted the objections but in order to ascertain the truth, sought the cross-examination, which has been declined as objections qua report of the Local Commissioner were dismissed on 20.05.2009.
3. Learned counsel appearing on behalf of the petitioner submitted that aforementioned order is not in consonance with the provisions of Order 26 Rule 10(2) CPC.
4. Learned counsel appearing on behalf of the judgment-debtor supported the order under challenge and submitted that it is nothing but pressure and dilatory tactics. The right of the cross-examination of the Local Commissioner, in view of the dismissal of the objections already stood forfeited.
5. I have heard the learned counsel for the parties and appraised the paper book. For adjudication of the lis, it would be apt to reproduce the provisions of Order 26 Rule 10(2) CPC:-
“(2) Report and depositions to be evidence in suit. Commissioner may be examined in person - 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”
6. The aforementioned statutory provisions empower the party to seek assistance of the Court for cross-examination of the Local Commissioner as in the absence of such prayer, report is per se admissible. The trial Court remained oblivious of the fact that the objections are not matter of record, rather not maintainable, in view of the law laid down by the a Division Bench of this Court in Balbir Dewan Cold Storage and General Mills Vs. Naveen Chander, 1989 PLJ 257.
7. The impugned order is not sustainable and the same is hereby set aside. The application of the petitioner for cross-examination of the Local Commissioner is allowed. Consequently, the revision petition is allowed.
