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2006 DIGILAW 918 (MAD)

Gnanaraj v. Bakyalakshmi & Another

2006-04-03

R.BANUMATHI

body2006
Judgment :- 1. The Defendant is the Revision Petitioner. Application for appointment of Advocate Commissioner filed by the Revision Petitioner/ Defendant in I.A. No. 1277/2005 in O.S. No. 1125/2000 was allowed by the Principal District Munsif Court, Madurai by the order dated 19.1.2006. Though the Petition was allowed, the Petitioner has preferred this Revision on the ground that the Court has declined to examine the Commissioner as Court Witness but directed that the Commissioner be examined as witness on the Petitioner's side. 2. Suit O.S. No. 1125/2000 was filed by the Respondent Plaintiff for Permanent Injunction restraining the Defendant from proceeding with the construction in the 'C' Schedule Property. In the I.A. No. 1134/2000, Commissioner was appointed and the Commissioner has filed his Report. The Defendant has filed his objections to the Commissioners Report. The Revision Petitioner-Defendant has also filed I.A. No. 589/2003 to scrap the Advocate Commissioner's Report and appoint a new Advocate Commissioner. That Petition was dismissed by the order dated 25.04.2005. Against that order, the Revision Petitioner had earlier preferred C.R.P. No. 645/2005. That Revision was dismissed by the order dated 23.11.2005 holding that- "it is open to the Petitioner to examine the Advocate Commissioner focussing on the objections pointed out." 3. The trial commenced-Witnesses are being examined. When the case was posted for Defendant's evidence, at that stage, the Revision Petitioner Defendant had filed I.A. No. 1277/2005 to examine the Commissioner as witness. By the impugned Order, the Trial Court has allowed the Application, however directing that the Commissioner be appointed as the Defendant's evidence. The Trial Court has held that the Commissioner could be examined on behalf of the Defendant's side and the Defendant could cross-examine the Commissioner under Section 154, Indian Evidence Act. 4. Aggrieved over the finding of the Trial Court directing examination of the Commissioner on the Defendant's side, the Revision Petitioner Defendant has preferred this Revision. The learned Counsel for the Revision Petitioner has contended that the Commissioner has to necessarily be examined as the Court Witness and the Defendant could only cross-examine the Commissioner who is a Court Witness. 4. Aggrieved over the finding of the Trial Court directing examination of the Commissioner on the Defendant's side, the Revision Petitioner Defendant has preferred this Revision. The learned Counsel for the Revision Petitioner has contended that the Commissioner has to necessarily be examined as the Court Witness and the Defendant could only cross-examine the Commissioner who is a Court Witness. Drawing the attention of the Court to Order 16, Rule 14, C.P.C. the learned counsel for the petitioner submitted that the Court has ample powers under Order 16, Rule 14, C P.C. to examine the witnesses and in appropriate cases, the Court itself is to summon the Court Witness if it thinks that the ends of justice require. So, it is further submitted that the Trial Court erred in saying that the Commissioner could be examined only as a witness on the Defendant's side. It is further submitted that since the Defendant had earlier filed I.A. No. 589/2003, to scrap the report of the Advocate Commissioner, if the Commissioner is to be examined as the Defendant's witness it would cause great hardship to the Defendant and hence seeks for modification of the impugned Order. In support of his contention, the learned counsel for the petitioner relied upon K.C. Palanisanty v. M. Chinnasamy and 16 others, 2002 (4) CTC 222 and R.M. Seshadri v. G. V. Pai, AIR 1969 SC 692 . 5. Since, the suit is pending part heard in the Trial Court, without wasting time in ordering Notice, the matter was taken up for hearing in the admission stage. Mr. M. Ramadoss has been appointed as amicus curiae to assist the Court. Placing reliance upon AIR 1976 SC 294 , the learned amicus curiae has submitted that under Section 154, Indian Evidence Act, a party can very well cross-examine their own witness and the Revision Petitioner can very well cross-examine the Commissioner. The learned amicus curiae has further submitted that under Order 26, Rule 10(2), C.P.C., report of the Commissioner is already the evidence and forms part of the record and the Commissioner need not any further be called as the Court Witness. It is further submitted that since the Application to examine the Commissioner is filed by the Revision Petitioner-Defendant, the Trial Court has rightly directed examination of Commissioner as a witness on the side of the Defendant. 6. It is further submitted that since the Application to examine the Commissioner is filed by the Revision Petitioner-Defendant, the Trial Court has rightly directed examination of Commissioner as a witness on the side of the Defendant. 6. The short point that arises for consideration is: "When the party seeks to examine the Commissioner, in such instance, whether the Commissioner is to be examined as the witness of the party or as a Court Witness". 7. Earlier, the Revision Petitioner/Defendant had filed I.A. No. 589/2003 to scrap the Commissioner's Report. As against the dismissal of that Application, the petitioner had preferred C.R.P. No. 645/2005. This is the second round of litigation in the High Court. While disposing C.R.P. No. 645/2005, Justice Prabha Sridevan has observed that it is open to the Petitioner/Defendant to examine the Advocate Commissioner focusing on the objections pointed out. 8. Under Order 26, Rule 10(2), C.P.C., the Report of the Commissioner and the evidence taken by him shall be the evidence in Suit and shall form part of the record. Order 26, Rule 10, C.P.C. contemplates examination of the Commissioner in two instances as noted below: “But the Court or, with the permission of the Court, any of the parties to the suit way examine the Commissioner personally in open Court touching any part of the matter referred to him or mentioned in his report, or as to his report, or as to the matter in which he has made the Investigation.” Thus the Commissioner could be examined either by the Court or with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court. 9. Disjunctive 'or' has significance. The Commissioner may be examined either by Court or by any one of the parties to the suit with the permission of the Court. Thus when the Commissioner is examined by the Court itself, the Commissioner may be examined as a Court Witness. By filing I.A. No. 1277/2005, the Defendant has only sought permission for examination of the Commissioner. When such a permission is granted to the party to the suit to examine the Commissioner, it is the discretion of the Court to examine the Commissioner either as the Court Witness or as Party's Witness. 10. By virtue of Order 26, Rule 10(2), C.P.C., the Report of the Commissioner is evidence, forming part of the Court Record. When such a permission is granted to the party to the suit to examine the Commissioner, it is the discretion of the Court to examine the Commissioner either as the Court Witness or as Party's Witness. 10. By virtue of Order 26, Rule 10(2), C.P.C., the Report of the Commissioner is evidence, forming part of the Court Record. Utility of the Commissioner's Report is that the same could be used as evidence without putting the Commissioner in the box. Now the Revision Petitioner-Defendant has raised certain objections regarding the Commissioner's Report on the ground that certain observations of the Commissioner are wrong. As the things stand, the Commissioner now stands in a situation, which makes him and his Report adverse to the Defendant. In fact, the Court could have even declined permission to examine the Commissioner. But in compliance of the earlier direction in C.R.P. No. 645/2005, the Court has allowed the examination of the Commissioner on the Application filed by the Petitioner, however, adding a rider that the Commissioner is to be examined as a Defendant's witness. If the Commissioner is to be examined as the Court Witness, since the Commissioner's Report is stated to be adverse to the Defendant, in view of such objections raised by the Defendant, obviously the Revision Petitioner-Defendant might subject the Commissioner to vexatious cross-examination. In the facts and circumstances of the case, if the Commissioner is examined as defence witness, it would enable him by putting appropriate questions to contradict the report of the Commissioner and thereby, limiting the examination of the Commissioner. Examining the Commissioner as the Defence Witness would curtail the examination of the Commissioner. By directing the Commissioner to be examined as the Defence Witness, there is no improper exercise of discretion. 11. Placing reliance upon K. C. Palanisamy v. M. Chinnasamy and 16 others, 2002 (4) CTC 222 , the learned counsel for the petitioner has submitted that under Order 16, Rule 14, C.P.C., the Court has ample Power to examine not only the parties but also the witnesses summoned by them and also other persons whom the Court thinks necessary. It is further submitted that it is right and duty of the Court to exercise that power as effectively as possible and hence the Court ought to have directed examination of the Commissioner as the Court witness. It is further submitted that it is right and duty of the Court to exercise that power as effectively as possible and hence the Court ought to have directed examination of the Commissioner as the Court witness. The learned Counsel placed reliance upon the decision R.M. Seshadri v. G. V Pai, AIR 1969 SC 692 . Referring to Order 16, Rule 14, C.P.C., in Mohammad Ibrahim v. Shaik Mohammed, AIR 1949 Mad. 292, it was held: "The Court has also ample power under Order 16, Rule 14, Civil P.C. to examine not only the parties and the witnesses summoned by them but also other persons whom the Court thinks are necessary. If a jurisdiction exists in a Court, the Court has always the right and duty to exercise that power as effectively as possible, it is an inherent jurisdiction of the Court to make its power effective even though there is no specific provision in the Code or elsewhere to convex that particular power." 12. The above two decisions, K. C. Palanisamy v. M. Chinnasamy and 16 others, 2002 (4) CTC 222 and R.M. Seshadri v. G. V. Pai, AIR 1969 SC 692 are matters relating to Election Petitions, In view of the nature of the dispute involved in the Election Petition, the Courts have held that the Returning Officer is a Public Servant, who is entrusted with the work of conducting Election. Courts have held that it is just and necessary that he should be examined as a Court Witness. It is to be noted that the Election Petition is a special proceeding. Law even requires that the Election Petitioner should not be allowed to withdraw an Election Petition which he has once made and the Election Petition may even be continued by another person. It must be remembered that the Election Petition is not an action at law or a suit in equity but involving public Interest. In that view of the matter, to meet the ends of justice and to have the required evidence, the Courts have held that the Retiming Officer is a Public Servant and that, he should be examined as a Court Witness. That proposition laid down relating to the Election Petition cannot be applied to the regular suit filed by the Plaintiff. 13. If there is no real ground for examining the Commissioner, the Court has discretion to disallow it. That proposition laid down relating to the Election Petition cannot be applied to the regular suit filed by the Plaintiff. 13. If there is no real ground for examining the Commissioner, the Court has discretion to disallow it. Protection is afforded so as to make it impossible for either of the parties to subject the Commissioner, who is a quasi Judicial Officer, to vexatious examination. But the permission should not be withheld arbitrarily. The learned District Munsif has rightly granted the permission, however, directed that the Commissioner to be examined as the Defendant's witness. Such direction is well in accordance with Order 26, Rule 10(2), C.P.C. 14. Under Order 26, Rule 10(2), the Commissioner's Report is evidence in the Suit. It is the Court's duty to consider it as the evidence which forms part of the record. If the Defendant desires to call the Commissioner either for asserting the Report or contradicting the Report, the Commissioner may be examined as a party's witness. It may be that the Defendant is dissatisfied with the report of the Commissioner. If that be so, as rightly pointed out by the Trial Court, the Defendant could very well cross-examine the Commissioner under Section 154, Indian Evidence Act. 15. The position could be summed, up as under: (i) Under Order 26, Rule 10(2), C.P.C., the Report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record; (ii) The Court itself could examine the Commissioner and in such cases, the Commissioner is to be invariably examined as a Court Witness; (iii) When Application is filed by any of the parties to the Suit to examine the Commissioner, it is the discretion of the Court to allow the Application. But permission should not be withheld arbitrarily. If permission is declined it must be by a reasoned order. When the Court grants permission to the party to examine the Commissioner, it is the discretion of the Court either to examine the Commissioner as a Court Witness or as that of the Party's witness; (iv) In the facts and circumstances of the case, the Court has to judicially determine whether the Commissioner is to be examined as a Court witness or the Party's Witness? (v) The contention that in all the instances the Commissioner is to be examined only as a Court Witness, is unacceptable. (v) The contention that in all the instances the Commissioner is to be examined only as a Court Witness, is unacceptable. Protection is afforded to the Commissioner from any vexatious examination by either of the party. 16. The impugned Order does not suffer from any error of law apparent on the face of the record warranting exercise of supervisory jurisdiction under Article 227 of the Constitution of India. This Revision has no merits and is bound to fail. 17. The Revision is dismissed, confirming the order made in I.A. No. 1277/2005 in O.S. No. 1125/2000 on the file of the Principal District Munsif Court, Madurai. C.M.P. No. 2183/2006 is also dismissed. It is directed that the Cross Examination of the Commissioner should be confined only relating to the objections raised by the Revision Petitioner/Defendant in the objections filed by him and not beyond that. The Trial Court is directed to expedite the trial.