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2002 DIGILAW 611 (CAL)

Asit Baran Dey v. Shanti Rani Das Dewanji

2002-09-12

PRABIR KUMAR SAMANTA

body2002
JUDGMENT This revisional application is directed against the order dated 19th August, 2002 thereby refusing the defendant's prayer for cross-examination of the Pleader Commissioner who submitted his report upon local investigation. The plaintiff/opposite party having raised an objection against the said report examined the Pleader Commissioner whereupon the defendant/petitioner prayed for such cross-examination of the Pleader Commissioner. The learned Trial Court refused to give permission to the defendant/petitioner to cross-examine the learned Commissioner only because no written objection was filed against the said report by him. 2. Order 26, Rule 10(2) of the Code provides as under:– “Report and depositions to be evidence in suit:– The report of the Commissioner and the evidence taken by him [but not the evidence without the report] shall be evidence in the suit and shall form 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”. 3. Upon bare perusal of the said provision, it is abundantly clear that either of the parties with the permission of the Court may examine the commissioner personally in open Court in relation to his report and the manner in which the investigation was made by the Investigating Commissioner. On the face of the said provision, it does not appear that such examination would be permissible only in the event of an objection being raised against the said report. Such examination in the facts and circumstances of the case may be by any of the parties to the suit who may support such report. 4. Mr. Chakraborty, learned Sr. Advocate appearing on behalf of the plaintiff/opposite party made two fold contentions in support of the impugned order. Firstly, under the term of Order 26, Rule 10(2) of the Code any of the parties to the suit may examine the Commissioner. These terms necessarily mean only examination of the Commissioner and that too by any of the parties to the suit but not cross-examination over on such examination by the other party. Firstly, under the term of Order 26, Rule 10(2) of the Code any of the parties to the suit may examine the Commissioner. These terms necessarily mean only examination of the Commissioner and that too by any of the parties to the suit but not cross-examination over on such examination by the other party. If such an examination is made by one of the parties to the suit, no further cross-examination by the other side would be permissible inasmuch as the said provisions being a special provision will have overriding effect over the general provisions of Indian Evidence Act relating to examination and of a person. I am unable to accept such contention. First of all, the term ‘examination’ as appearing in Order 26, Rule 10(2) of the Code has been issued with the broad sense of examination either by the Court or by any of the parties to the suit. The purpose of such examination, in true sense is to find out how truthful is the report and what degree of evidentiary value should attach on it. Such examination is not for the purpose of proving the same only to be not of any evidentiary value. Such examination is, therefore, not restricted to the party alone who wants to disprove the same. In our adversarial judicial system no examination of a witness and/or a person is complete unless such witness or person has been subjected to cross-examine by the other side and no justice is complete without equal opportunity to both the sides. Thus, the examination as made by the plaintiff/opposite party of the Investigating Commissioner in respect of his report will not be complete unless such Investigating Commissioner is subjected to the cross-examination by the defendant/petitioner in respect of the deposition made by him in such examination. 5. In the views as above, I am unable to accept the second contention of Mr. Chakraborty that such cross-examination is also not permissible on the principle that if a stature prescribes a certain thing to be done in a certain manner, then that thing should be done in that very manner not in any other manner. Reference was made to the decision of the Supreme Court reported in (1) AIR 1975 SC 915 , Ramchandra Keshav Adke (Dead) by Lrs, v. Govino Joti Chavare and Others. Reference was made to the decision of the Supreme Court reported in (1) AIR 1975 SC 915 , Ramchandra Keshav Adke (Dead) by Lrs, v. Govino Joti Chavare and Others. It has been laid down there that where a power is given to do a certain thing in a certain way, the thing must be done in that very way and not in any other way. As I have already held that the aforesaid provisions of Order 26, Rule 10(2) having provided for examination of the Commissioner and such examination necessarily implies cross-examination, if any, by the adversary, I am further of the view that the said decision does not have any application in the facts and circumstances of this case. 6. ‘Lastly, Mr. Chakraborty, relied on a Division Bench decision of the Kerala High Court reported in (2) AIR 1985 Kerala 109, State of Kerala v. Kattammal Mammeeriyakutty and Others. The said decision laid down that once Commissioner's report formed a part of the record and evidence in the case, no plea could be taken at a later stage as to the admissibility of the said report in evidence for non-examination of the Commissioner. In the facts and circumstances of this case, the said decision also has no application whatsoever. This is not a case where the defendant/petitioner raised any objection as to the admissibility of the report of the Commissioner in evidence. This is a case where the defendant/petitioner has been refused with the permission to cross-examine the commissioner on the deposition made by him upon examination by the plaintiff/opposite party. This is not a case raising a question as to the admissibility of the report in evidence after it has been admitted in evidence. 7. In all such views, the impugned order cannot be sustained in law inasmuch as the same was made absolutely in wrongful exercise of jurisdiction on the grounds as above. I, therefore, set aside the impugned order and thus allow the revisional application by permitting the defendant/petitioner to cross-examine the Investigating Commissioner. The learned Trial Court shall accordingly permit the defendant/petitioner to cross-examine the Investigating Commissioner and such cross-examination should be completed as expeditiously as possible. 8. The prayer for stay of operation of this order as made by the plaintiff/opposite party is considered and refused. 9. The learned Trial Court shall accordingly permit the defendant/petitioner to cross-examine the Investigating Commissioner and such cross-examination should be completed as expeditiously as possible. 8. The prayer for stay of operation of this order as made by the plaintiff/opposite party is considered and refused. 9. Urgent xerox certified copy of this order, if applied for, be supplied to the parties, as expeditiously as possible.