1982 Supreme(MP) 130

S. S. Sharma, J.
Laxman v. Ramsingh.
C. Revn. No. 18 of 1982 (I); Decided on 24-2-1982.

Headnote:(1) Civil P. C., 1908 -- O. 26, R. 9 -- object and nature of the provision is not meant to collect evidence for either of the parties -- nature is discretionary with the trial Court.

        (2) Civil P. C., 1908 -- O.39, R. 1, O. 19, R.2 and S. 115 -- provision under O.39, R. 1 are not controlled by O. 19, R. 2 -- prayer to cross-examined on affidavit refused -- no jurisdictional error committed.

        This revision by the defendant has been filed against an order dated 19-12-1981 passed by the trial Judge rejecting his application for appointment of a commissioner, under Order 26, rule 9 of the Code of Civil Procedure (hereinafter referred to as the Code), By this very order defendants application for remission to cross-examination the plaintiff on his affidavit, was also rejected.

        Held: The prayer for appointment of a commissioner was made on the ground that the commissioner would be able to see on the spot the crop which is standing on the suit lands. This according to the defendant will bring out the truth of his case as according to him it was gram crop as sown by the applicant which was standing on it. Learned counsel for the non-applicant plaintiff had submitted that the appointment of Commissioner as being sought on-certain assumptions. He had in this connection pointed out certain pleadings in that behalf. The object of local investigation is not so much to collect evidence for either of the parties. It is within the discretion of the Court to order a local investigation or reject the prayer. The Court below has exercised that discretion by rejecting that application. In view of the circumstances, it cannot be said that the Court has committed any error of jurisdiction while rejecting the application in that behalf.

        The other challenge is to the order rejecting the defendants prayer to cross-examine the plaintiff on his affidavit. Under order 39 rule 1 of the Code the Court has a power to act on an affidavit which has generally to be distinguished from the power of the Court of receiving proof of facts on affidavit. The power given to the Court to act on affidavit in support of an application under O. 39, R. 1 of the Code is not controlled by the provisions of order 19, rules 1 and 2 of the Code. However, If in the circumstances of a particular case, the Court itself considers it necessary to summon any defendant for cross-examination, it has power to do so. That power could be invoked even by the parties desiring to cross examine on the affidavit. The result, therefore, is that the applicant defendant is not entitled as a matter of right to cross examine the plaintiff on his affidavit. The Court below, which had the power to allow defendants prayer or reject it has chosen to reject that prayer.

        This again is a matter which was within the jurisdiction of the trial Court. Revision dismissed.