- (1.) THIS Rule raises an interesting question. A boundary dispute is involved in the connected suit and a Pleader Commissioner was appointed for local inspection of the topography of the area around the suit land with certain specific directions in connection therewith. The commissioner filed his report and the defendant filed an objection to the said report. As the hearing of the suit commenced, the Pleader Commissioner was examined and thereafter it appears that he was cross-examined by the defendant. After the cross-examination was closed, the plaintiff wanted to cross-examine the Pleader Commissioner for some clarifications. The learned Munsif was of the opinion that there could not be any cross-examination over cross-examination. Further the plaintiff did not file any objection to the commissioner's report and accordingly he had nothing to cross-examine and no question of re-examination arose as there was no examination-in-chief. The plaintiff accordingly was not allowed to examine the Commissioner and the present Rule is directed against this order at the instance of the plaintiff.
(2.) MR. Dilip Kumar Bose, learned advocate appearing for the plaintiff, submitted that his client did not file any objection to the Pleader Commissioner's report as it was accepted by him. But on account of certain statements made by the Commissioner in reply to the cross-examination, some clarification was necessary for which the plaintiff should have been given an opportunity to examine the Commissioner. These contentions have been disputed by Mr. Puspendu Bikash Sahu, learned Advocate appearing for the opposite party.
(3.) THE procedure for examination of the Commissioner has been laid down in rule 10 of Order 26 of the Code of civil Procedure which is as follows: "10. (1) 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 is report in writing signed by him to the Court. (2) The report of the commissioner and the evidence taken by him (but not his evidence without the report)shall be evidence in the suit and shall from 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. . . . " in regard to the examination of the commissioner, the procedure laid down for examination of other witnesses need not be followed in view of the express provisions referred to above. Of course, when a party has not filed any objection to the commissioner's report, he should not normally be granted permission by the Court to examine the commissioner. But when after examination by the other party the Commissioner's report is undermined or becomes inconsistent with his evidence or requires clarification according to the party who has not filed any objection to it, it is only in fitness of things and according to the principles of justice and fair play that such party should be given an opportunity to examine the Commissioner's replies given by him to the examination of the other party with reference to the commissioner's report. Otherwise such party not filing any objection may suffer serious and irreparable prejudice and be placed in an irretrievably unfortunate position for mere acceptance of the Commissioner's report. ;