The main legal point established in the judgment is the court's authority to set aside a trial court's decision under Article 227 of the Constitution of India when it finds a palpable error in the refusal to take on record certain evidence.

ORDER : – This petition under Article 227 of the Constitution is filed at the instance of defendant No. 6 and 7 against the impugned order dated 30-11-2021 (Annexure P/9) passed by IVth District Judge, Satna.

2. A Civil Suit No. 1-A/2014 is pending before the trial Court seeking decree of specific performance of contract dated 17-1-2017 and declaring the sale deed dated 15-3-2013 and 17-4-20013 executed in favour of defendants No. 4 and 5 to be null and void to the extent of share of the plaintiff and for permanent injunction against the defendants. The petitioners in the present petition are defendants No. 6 and 7 in the civil suit. In the trial Court, the evidence of defendant No. 1 was recorded. However, defendant No. 6 was not given opportunity to cross-examine defendant No. 1 and the statement of defendant No. 1 was against the defendant No. 6 and, therefore, his prayer for cross-examination was accepted by this Court, vide order dated 8-1-2020 passed in W. P. No. 10710/2017.

3. In pursuance to the order passed by this Court, on 5-3-2020, the learned trial Court appointed the Court Commissioner to record the statement of D.W.1 as the said witness was unable to stand on his legs because of his old age. It appears that on the said date the cross-examination of D.W.-1was conducted and evidence was filed by the Court Commissioner. It appears that respondent No. 1/plaintiff on the same date filed an application before the trial Court seeking direction to first testify/verify the mental and hearing condition of D.W.1, who, according to him was impaired. On 26-11-2021, the trial Court questioned D.W.1 and it was found that D.W.1 although was of old age but he was able to hear and answer the question as per his understanding. On 30-11-2021, an objection of respondent No. 1 to the said effect was rejected. The trial Court, however, has rejected the cross-examination of D.W.1 recorded on 5-3-2020 on the ground that respondent No. 1/plaintiff was not noticed and said cross-examination was conducted in his absence.

4. Learned counsel appearing for the petitioners submits that several calls were given to the counsel for the plaintiff. Counsel for D.W.1 was very much present. The presence of counsel for the plaintiff is immaterial as he had already cross-examined D.W.1. He placed reliance on the provisions of Order XVIII, Rule 19 and Order XXVI, Rule 4-A of Civil Procedure Code to contend that evidence once recorded before the Commissioner shall form part of the Court record, therefore, rejection of such evidence is per se illegal.

5. Learned counsel appearing for the respondents, however, opposed the petition and they submit that cross-examination of defendant No. 1 in absence of plaintiff is a palpable error and, therefore, the same has rightly been corrected by the learned trial Court and any other view would amount to miscarriage of justice.

6. I have heard learned counsel for the parties and perused the record.

7. The order dated 30-11-2021 clearly shows that cross-examination of D.W.1 was conducted in the absence of plaintiff. Thereafter, the matter was directed to be proceeded after recording the statement of D.W.1 in the presence of the parties.

8. Although the cross-examination of defendant No. 1 by co-defendant No. 6 was conducted by the Commissioner in the absence of the plaintiff but nothing has been brought on record by the plaintiff to show that any irregularity was committed by the Commissioner while recording evidence, nor he has been able to show any mala fide on behalf of Commissioner nor has been able to show any prejudice which might have been caused to him by recording of evidence in his absence. Even at the first opportunity available while filing objection application in the lower Court, the plaintiff has only raised objection regarding the mental and hearing condition of DW-1, but has not taken any ground regarding any irregularity or mala fide on the part of the Commissioner while conducting cross-examination.