SHAMPA SARKAR, J. - (1.) The defendant in a suit for declaration of title, recovery of possession and permanent injunction being Title Suit No.81 of 2002, pending before the learned Civil Judge (Junior Division), 1st Court, Paschim Medinipur, has filed this revisional application being aggrieved by an order dated June 18, 2019 by which an application filed by the defendant/petitioner dated December 3, 2014 for allowing cross" examination of the learned Commissioner was rejected. The operative portion of the order impugned is quoted below: "On going through the record I find that vide order no.46 dt. 09.05.2008 this court after hearing both the plaintiff and the defendant accepted the commission report on contest. The defendant challenged the said order before the Hon'ble High Court and the Hon'ble Court was pleased to dispose of the revisional application with statement that no interference with the impugned order was necessary. The defendant thereafter filed a petition for reinvestigation which was also rejected by this court vide order no.55 dt. 09.07.2009 and challenging the said order the defendant moved the Hon'ble High Court and the Hon'ble Court was pleased to dismiss the revisional application. The present petition is the third in a row and it is apparent that the defendant is somehow trying to delay and drag the suit. I find no reason to allow the present petition whose fate has already been decided by two earlier orders of this court. The defendant should be imposed with cost for the dilatory tactics adopted by him."
(2.) It is submitted by the petitioner that the learned Commissioner failed to appear for cross"examination as recorded in the order dated January 28, 2008 and the cross"examination of the Commissioner which had begun had not been concluded. Thus, the application filed by the defendant/petitioner for cross"examination of the Commissioner should have been allowed. It is submitted that until and unless the cross" examination of the Commissioner is concluded, the suit could not have proceeded and the Commissioner's report should not have been accepted.
(3.) Records reveal that the examination of the Commissioner was done by the defendant. The said fact has also been recorded by this High Court in an order dated April 1, 2009 in C.O. No.2616 of 2008 filed by the petitioner. The relevant portion of the order is quoted below: "A survey passed commissioner was appointed by the learned Trial Judge for the said purpose. The investigation commissioner submitted his report after investigating the points of investigation as mentioned in the application for local investigation. The defendant was not happy with the report as according to the defendant, the said report was not prepared properly. The investigation commissioner was also cross"examined by the defendant in court. Since the report was accepted by the learned Trial Judge by discarding the objection submitted by the defendant against the said report, the defendant has filed the instant application under Article 227 of the Constitution of India before this Court. Let me now consider as to how far the learned Trial Judge was justified in rejecting the petitioner's objection in the facts of the instant case. ;