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2022 DIGILAW 774 (ALL)

Durga Prasad v. Manju Singh

2022-05-17

SARAL SRIVASTAVA

body2022
JUDGMENT : 1. Heard learned counsel for the petitioners and Ms. Rama Goel, learned counsel for the respondents. 2. The petitioners, by means of the present writ petition, have assailed the order dated 22.02.2022 passed by the Civil Judge (Junior Division), Jhansi in Original Suit No.69 of 2007, by which the application of the petitioners being application No.493D for summoning the Survey Commissioner with 'Guniya and Prakar (Compass)' to demonstrate the procedure before the Court as to how he had measured the property in question during survey has been rejected and the order dated 22.03.2022 passed by the District Judge, Jhansi in Civil Revision/Misc. Case No.35 of 2022 affirming the order passed by the trial Court dated 22.02.2022. 3. The petitioner no.1 instituted an Original Suit No.69 of 2007 (Durga Prasad Vs. Smt. Manju Singh and another) praying for cancellation of sale deed dated 22.03.2007 in respect of plot No.675/6 and permanent injunction restraining the respondents from interfering with the peaceful possession of the petitioners in the property in dispute. 4. It appears that in the suit, three times Survey Commissioner has been appointed. The last Survey Commissioner was appointed in the year 2017 for surveying the property in dispute on the application of the petitioners. The Survey Commissioner submitted his report on 31.03.2017. 5. The petitioners being dissatisfied with the Survey report submitted by the Survey Commissioner, filed objection under Order XXVI Rule 10 (2) of C.P.C. The Survey Commissioner was summoned for cross examination and the cross examination of the Survey Commissioner is continuing and has not yet closed. During the cross examination of Survey Commissioner, the petitioner submitted application 493D praying that the Survey Commissioner be summoned with 'Guniya and Prakar (Compass)' to demonstrate as to what procedure he had adopted in surveying the property in question. 6. The said application of the petitioners has been rejected by the trial Court vide order dated 22.02.2022 holding that the Survey Commissioner is of 74 years of age and he is old, therefore, it is not proper to summon him with 'Guniya and Prakar (Compass)' to demonstrate as to how he surveyed the property in question. Consequently, the trial Court found no merit in the application and dismissed the same. 7. The revisional court by order dated 22.03.2022 affirmed the order passed by the trial Court dated 22.02.2022. Consequently, the trial Court found no merit in the application and dismissed the same. 7. The revisional court by order dated 22.03.2022 affirmed the order passed by the trial Court dated 22.02.2022. The revisional court while rejecting the revision gave an independent finding holding that the first Survey Commission application was filed on behalf of the petitioners in the year 2011 and the same was allowed and this is the third Survey Commissioner Report which was submitted on 31.03.2017 and is pending for disposal since then. 8. The revisional court further held that it is not in dispute that petitioners submitted application for cross-examination of Survey Commissioner under the provisions of Order 26 Rule 10 (2) of C.P.C. and the cross-examination of the Survey Commissioner started on 18.09.2021 and is still continuing. The revisional court further held that it is clear from the record that it is still open to the parties to cross-examine the Survey Commissioner as per the provisions of Order 26 Rule 10 (2) of C.P.C. as the cross examination of Survey Commissioner has not yet been closed, therefore, the opportunity to cross-examine the Survey Commissioner has not been closed. Accordingly, it held that appropriate question may be asked by the petitioners in cross-examination from the Survey Commissioner regarding procedure followed by the Survey Commissioner, and the application has been filed only to delay in disposal of the suit. 9. Challenging the said order, learned counsel for the petitioners has submitted that the reading of Order 26 Rule 10 (2) of C.P.C. clearly demonstrates that any party can ask for Court Commissioner to demonstrate the manner and procedure which he had followed in conducting the survey, so that true facts may come on record before the Court in order to ascertain whether the Court Commissioner has followed the right procedure in conducting the survey. 10. Per contra, learned counsel for the respondents would contend that perusal of Order 26 Rule 10 (2) of C.P.C. would demonstrate that the Court Commissioner can be cross-examined by any party on any of the questions or points as referred in Order 26 Rule 10 (2) of C.P.C. The said provision does not permit any of the parties to move an application to summon the Court Commissioner along with his instruments to demonstrate the manner and procedure which he had followed in conducting the survey. 11. 11. It is contended that the Order 26 Rule 10 (2) of C.P.C. clearly provides that any question in respect of the manner and procedure adopted by the Court Commissioner in conducting the survey can be asked, and on being asked such question if answer to such question reflects that correct procedure has not been followed by the Survey Commissioner, it can be proved that the report of Survey Commissioner is not correct. 12. Be that as it may, to appreciate the controversy in hand, it would be apt to refer the Order 26 Rule 10 (2) of C.P.C. which reads as under:- “10 (2) 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.” 13. Perusal of the Order 26 Rule 10 (2) of C.P.C., quoted above, clearly demonstrate that the said provision provides for cross-examination of Court Commissioner on any of the point including the point as to the manner and procedure which had been followed or adopted by the Court Commissioner in conducting the survey. The aforesaid provision does not permit any of the parties to submit application for summoning the Court Commissioner along with instruments to make actual demonstration in the Court as regards the procedure adopted by him in conducting the survey. If any of the party is not satisfied with the survey report submitted by the Survey Commissioner, it may put a question in cross-examination regarding the manner and procedure adopted by him in conducting the survey. The issue can be very much determined from the reply of the Court Commissioner to the question put by any of the parties in cross-examination regarding the procedure adopted by the Court Commissioner in conducting the survey. 14. The issue can be very much determined from the reply of the Court Commissioner to the question put by any of the parties in cross-examination regarding the procedure adopted by the Court Commissioner in conducting the survey. 14. In the opinion of the Court, there is no requirement in law, nor the aforesaid provision permits any of the parties to ask for summoning of the Court Commissioner along with his instruments to make actual demonstration about the procedure followed by him in conducting the survey. 15. Learned counsel for the petitioners could not dispute that the cross-examination of the Court Commissioner is still continuing and has not yet closed. In such view of the fact, the petitioners have still an opportunity to put relevant question to the Court Commissioner to prove that the report of the Survey Commissioner is wrong or incorrect. 16. At this stage, it is pertinent to mention that the petitioners have instituted the suit in the year 2007 and first application for Survey Commissioner was filed in the year 2011 and uptill 2017 two more applications, i.e., total three applications for appointment of Survey Commissioner have been filed by the petitioners and more than 15 years have passed, yet the suit has not proceeded because of the lingering device adopted by the petitioners, so that the Court may not proceed to decide the suit. Thus, this Court finds that the finding of the revisional court that the application filed by the petitioners has been filed only to linger on the suit is based upon proper appreciation of facts on record. Accordingly, this Court does not find any infirmity in the order passed by the revional court as well as trial court. 17. Thus, for the reasons given above, the writ petition lacks merit. It is accordingly, dismissed with no order as to costs.