IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1030 of 2024 [An application under Articles 226 and 227 of the Constitution of India]

Basanta Behera @

Basanta Kumar Behera …. Petitioner -Versus-

Rabindra Behera & others ….. Opp. Parties Advocate(s) appeared in this case:

For the Petitioner : M/s. Amit Prasad Bose, D. Sahoo &

D.K. Sethy, Advocates.

For Opp.Parties : Mr. K.K. Mohapatra, Advocate [ for O.P. No.1]

_________________________________________________________

CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

22^nd August, 2025 SASHIKANTA MISHRA, J.

The petitioner is the defendant No.1- judgment debtor of C.S. No. 54/2006-(1) of the Court of learned 1^st Additional Civil Judge (Sr. Division), Balasore. In the present application filed under Article 227 of the Constitution, he seeks to challenge the order dated 02.09.2024 passed by the said Court in final decree proceeding arising out of the said suit whereby, the defendant No.2 was permitted to cross-examine the Civil Court Commissioner.

2. The facts, relevant only to decide the present application are that the plaintiffs filed the suit for partition and permanent injunction. The suit was decreed preliminarily on 30.09.2013 declaring the entitlement of the plaintiffs and defendants. The present petitioner defendant No.1 carried appeal to the District Court in RFA No.157 of 2013, but said appeal was dismissed on 03.03.2017. The plaintiff thereafter initiated final decree proceeding, wherein a salaried Amin was deputed by the Court for making partition of the suit land. The salaried Amin submitted his report to the Court on 30.09.2023. The plaintiffs did not file any objection to the Commissioner’s report but the present petitioner Defendant No.1 filed his detailed objection. The defendant No.2 also did not file any objection. The Commissioner was thereafter called as a witness to prove his report. The petitioner-Defendant No.1 cross-examined the Commissioner. The defendant No.2 thereafter filed a petition to cross-examine Commissioner. Defendant No.1 filed an objection challenging the maintainability of the petition. The Court below, by the order impugned, allowed the petition by holding that even though defendant No.2 had not raised any objection to the Commissioner’s report yet he has the right to cross- examine the Commissioner. The petition was therefore, allowed.

3. Heard Mr. A.P. Bose, learned counsel for the defendant No.1-petitioner and Mr. K.K. Mohapatra, learned counsel for the defendant No.2-opposite party No.1.

4. Mr. Bose would argue that admittedly, defendant No.2 had not filed any objection whatsoever to the Commissioner’s report. Though he can still cross-

examine the Commissioner, but such right ought to have been exercised by him at the first instance. Once defendant No.1 having objected to the Commissioner’s report has cross-examined the Commissioner, defendant No.2, not having filed any objection, cannot be permitted to cross- examine as he would then be in a position to patch up the lacunae if any in the Commissioner’s evidence as also nullify the facts elicited from him in cross-examination by defendant No.1. The Court below has proceeded on an erroneous premise. Mr. Bose has relied upon the following judgement in support of his contention.

“Sukana Mallik and others vs. Khatu Mallik, [(1989) 67 C.L.T. 781]

5. Per Contra, Mr. K.K. Mohapatra would argue that it is the settled position of law that even if a party does not object to the report of the Commissioner, his right to cross-examine the Commissioner cannot be taken away. While cross-examining the Commissioner, defendant No.1 did not file any application to not allow Defendant No.2 to cross-examine. Mr. Mohapatra has relied upon the following judgments in support of his contention.

“1. Vassiliades vs. Vassiliades and another

2. Des Raj Chopra and Ors. vs. Shri Pooran Mal and Ors, [AIR 1975 Delhi 109]

3. Ranjit Singh and Ors. vs. State of Uttarakhand and others, [2024 (262) AIC 107: 2024(4) CCC25].

6. From the facts narrated a