The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1030 of 2024 [An application under Articles 226 and 227 of the Constitution of India] Basanta Behera @ Basanta Kumar Behera …. Petitioner Rabindra Behera & others ….. Opp. Parties -Versus- Advocate(s) appeared in this case: For the Petitioner : M/s. Amit Prasad Bose, D. Sahoo & D.K. Sethy, Advocates. For Opp.Parties : Mr. K.K. Mohapatra, Advocate [ for O.P. No.1] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 22nd August, 2025 SASHIKANTA MISHRA, J.
Legal Reasoning
The petitioner is the defendant No.1- judgment debtor of C.S. No. 54/2006-(1) of the Court of learned 1st Additional Civil Judge (Sr. Division), Balasore. In the Page 1 of 9 present application filed under Article 227 of the Constitution, he seeks to challenge the order dated 02.09.2024 passed by the said Court in final decree proceeding arising out of the said suit whereby, the defendant No.2 was permitted to cross-examine the Civil Court Commissioner. 2. The facts, relevant only to decide the present application are that the plaintiffs filed the suit for partition and permanent injunction. The suit was decreed preliminarily on 30.09.2013 declaring the entitlement of the plaintiffs and defendants. The present petitioner defendant No.1 carried appeal to the District Court in RFA No.157 of 2013, but said appeal was dismissed on 03.03.2017. The plaintiff thereafter initiated final decree proceeding, wherein a salaried Amin was deputed by the Court for making partition of the suit land. The salaried Amin submitted his report to the Court on 30.09.2023. The plaintiffs did not file any objection to the Commissioner’s report but the present petitioner Defendant No.1 filed his Page 2 of 9 detailed objection. The defendant No.2 also did not file any objection. The Commissioner was thereafter called as a witness to prove his report. The petitioner-Defendant No.1 cross-examined the Commissioner. The defendant No.2 thereafter filed a petition to cross-examine Commissioner. Defendant No.1 filed an objection challenging the maintainability of the petition. The Court below, by the order impugned, allowed the petition by holding that even though defendant No.2 had not raised any objection to the Commissioner’s report yet he has the right to cross- examine the Commissioner. The petition was therefore, allowed. 3.
Legal Reasoning
Heard Mr. A.P. Bose, learned counsel for the defendant No.1-petitioner and Mr. K.K. Mohapatra, learned counsel for the defendant No.2-opposite party No.1. 4. Mr. Bose would argue that admittedly, defendant No.2 had not filed any objection whatsoever to the Commissioner’s report. Though he can still cross- Page 3 of 9 examine the Commissioner, but such right ought to have been exercised by him at the first instance. Once defendant No.1 having objected to the Commissioner’s report has cross-examined the Commissioner, defendant No.2, not having filed any objection, cannot be permitted to cross- examine as he would then be in a position to patch up the lacunae if any in the Commissioner’s evidence as also nullify the facts elicited from him in cross-examination by defendant No.1. The Court below has proceeded on an erroneous premise. Mr. Bose has relied upon the following judgement in support of his contention. “Sukana Mallik and others vs. Khatu Mallik1” 5. Per Contra, Mr. K.K. Mohapatra would argue that it is the settled position of law that even if a party does not object to the report of the Commissioner, his right to cross-examine the Commissioner cannot be taken away. While cross-examining the Commissioner, defendant No.1 did not file any application to not allow Defendant No.2 to 1 (1989) 67 C.L.T. 781 Page 4 of 9 cross-examine. Mr. Mohapatra has relied upon the following judgments in support of his contention. “1. Vassiliades vs. Vassiliades and another2 2. Des Raj Chopra and Ors. vs. Shri Pooran Mal and Ors3. 3. Ranjit Singh and Ors. vs. State of Uttarakhand and others4.” 6. From the facts narrated and the contentions raised, it is evident that the question involved in the present application is not so much as to the right of a party to cross-examine the Commissioner regardless of filing of objection by him but, the issue centers around the question as to the sequence of cross-examination vis-a-vis the parties. 7. It is not disputed by any of the parties that a party not objecting to the Commissioner’s report can also cross-examine the Commissioner. This is what was decided 2 AIR 1945 PC 38 3 AIR 1975 Delhi 109 4 2024 (262) AIC 107: 2024(4) CCC25 Page 5 of 9 in the case of Sukana Mallik (Supra), wherein this Court held as follows; “3. The Commissioner was appointed to make partition of the immovable properties under Order 26, Rule 13, C. P. С. Order 26, Rule 14, C P. C. deals with the provisions relating to the procedure to be adopted by the Commissioner and the manner of dealing with his report by the Court. There is nothing in the relevant provisions of sub- rule (2) of Rule 14 of Order 26, C.P.C. to suggest that merely on the ground that a party to the suit has not filed his objections to the Commissioner’s report, he is liable to be debarred from cross- examining the Commissioner. The learned counsel for the petitioners could not produce before me any authority in support of his contention that as the plaintiffs did not file objections to the Commissioner’s report they are precluded from cross-examining the Commissioner. That apart, when a person is summoned by the Court and examined as a court-witness, he is just as liable to be cross-examined by the parties to the suit as any other witness. See Tarini Charan Chowdhury and others v. Sharada Soondaree Dossee and Gopal Lall Seal v. Manick Lall Seal. So in the instant case as the Commissioner was examined as a court- witness, both the plaintiffs as well as the defendants had acquired a right to cross-examine him. So in any view of the matter, the learned Subordinate Judge was justified in rejecting the the cross- defendants’ petition objecting the examination of plaintiffs.” the Commissioner by to 8. Reading of the impugned judgment reveals that the Court below has referred to the aforesaid judgment Page 6 of 9 to allow the application filed by defendant No.2 to cross- examine the Commissioner. However, it appears that the Court below has not read the judgment in its entirety, wherein under paragraph-4, the following was also observed: case should cross-examine “4. In this context, before disposing of the revision petition, I think it proper to deal with another aspect which would be incidentally arising in such situations. As held by the Patna High Court in Motiram Narwari v. Lalit Mohan Ghose, the usual practice in cases, where some of the defendants support the plaintiff’s case and others oppose it, is to order that those who support the plaintiff’s the plaintiff’s witnesses first, if they desire to do so, before the defendants who oppose the plaintiff’s case do so. Any other practice would be inconvenient and might work as injustice to those defendants who oppose the plaintiff’s case. So it logically follows that if there are different sets of defendants opposing the plaintiff in varying degrees, the set of defendants opposing the plaintiff must be allowed to cross-examine the plaintiff’s witness to the last after the other sets of defendants have cross-examined him. Somewhat on the same analogy, after the Commissioner has filed his report under Order 26, Rule 14 if one of the parties to the suit files his objections to the report, but the other party does not file any such objections, then it would be proper that the party who has not filed any objection to the report should the to Commissioner (examined as a court-witness) in the first instance before the other party is called upon to cross-examine him.” cross-examine be asked Page 7 of 9 9. Following the ratio decided in the above case it is clear that the right of cross-examination of defendant No.2 must be held to be restricted to the time before cross- examination by defendant No.1 since the latter had objected to the Commissioner’s report, whereas he himself had not. It is quite obvious that if the defendant No.2, who not having objected to the Commissioner’s report implicitly supports it, would be in a favorable position if allowed to cross-examine the Commissioner after cross- examination by defendant No.1. It was open to defendant No.2 to have objected to the Commissioner’s report or to seek permission to cross-examine the Commissioner at the first instance. Not having done either, it is not open to defendant No.2 to cross-examine the Commissioner after defendant No.1 has cross-examined him. Defendant No.1 having objected and cross-examined the Commissioner, it would be unfair to allow a party supporting the Commissioner to cross-examine him subsequently. Page 8 of 9 10. The judgments relied upon by Mr. Mohapatra are on entirely different facts and do not touch upon the central issue involved in the present case and are therefore, held to be inapplicable 11.
Decision
For the foregoing reasons therefore, this Court is of the considered view that allowing the impugned order to subsist would confer unfair advantage to defendant No.2. The impugned order is therefore not sustainable. 12. In the result, the CMA is allowed. The impugned order is set aside. The Court below is directed to proceed further in the final decree proceeding in accordance with law. ………….……………... Sashikanta Mishra, Judge Orissa High Court, Cuttack The 22nd August, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 17:23:35 Page 9 of 9