The right to object to a local commissioner's report and to cross-examine the commissioner is governed by Order 26 Rule 10 of the Code of Civil Procedure.

JUDGMENT

Amol Rattan Singh, J. (Oral). - By this petition, the petitioner challenges the order passed by the learned Civil Judge (Junior Division), Faridabad, dated 06.10.2016, by which the objections filed by the petitioner against the report of the local commissioner appointed by that court for the purpose of demarcation of the suit property, has been dismissed.

2. It has been held by that court that firstly, the objection being that the demarcation was not undertaken from the correct side, i.e. the Eastern side, was not an objection that could be accepted because when the local commissioner had agreed to demarcate the suit property from that side, the petitioner, i.e. the plaintiff in the suit, did not accept that.

3. Other than that, it has been stated in the order that in any case if the objections were to be filed by either party, they could only be considered after the cross-examination, if any, of the local commissioner.

4. It is not disputed by learned counsel on both sides that in fact the evidence of the parties has been closed and therefore it would otherwise be presumed that if any cross-examination of the local commissioner was to be done by the petitioner, that would have also been concluded.

5. However, Mr. Sood, learned counsel for the petitioner, submits that with the petitioners' objections to the report of the local commissioner having been dismissed, the petitioner would not have been allowed to even cross-examine the local commissioner.

6. Having considered the matter, Rule 10 of Order 26 of the Code of Civil Procedure, 1908, may be referred to, which reads as follows:-

"10. Procedure of Commissioner.-(l) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(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.

(3) Commissioner may be examined in person.- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

7. While interpreting the said provision, a Division Bench of this court, in Balbir Dewan Cold Storage and General Mills v. Naveen Chander 1989 PLJ 247 , held as follows:-

"Thus, there is no provision for filing objections to such reports made by the Local Commissioners. Even otherwise, if objections are allowed to be filed to such like reports made by the Local Commissioners, then there will be no other way to find out the exact position of the site, in dispute. The inspection by the Local Commissioner is made in the presence of the parties. Therefore, the said report is to be ordinarily accepted by the Court appointing the Local Commissioner unless any inherent defect could be pointed out therein. Thus, from the provisions of Order 26 Rule 10, it is quite evident that there is no provision for inviting any objection to the report of the Local Commissioner appointed under rule 9 thereof. In case, any such objections are filed by either of the parties to draw the attention of the Court as to the inherent defect therein, the Court may consider the same and if for any reason dissatisfied with the proceedings of the Commissioner, may direct such further inquiry to be made as it shall think fir but neither of the parties is entitled to claim any issue with respect to the report. The only provisions under sub rule 2 of Rule 10 of Order 26 of the Code is to