Case Note & Summary
The appellants, who were the plaintiffs in the original suit, filed a second appeal against the concurrent dismissal of their suit for declaration of ownership and injunction regarding Khasra No. 70 at village Pinglai, Bhandara. The plaintiffs claimed ownership of the land and alleged that the defendant had encroached upon a portion of it. During the trial, a Commissioner was appointed to inspect the suit property and submitted a report along with a map. However, the trial court and the first appellate court both ignored the Commissioner's report on the ground that the Commissioner was not examined as a witness. The plaintiffs' suit was dismissed, and the appeal was also dismissed. The High Court admitted the second appeal on the substantial question of law whether the courts below were justified in ignoring the Commissioner's report on that ground. The High Court held that under Order 26 Rule 10(2) of the Code of Civil Procedure, 1908, the report of the Commissioner is admissible in evidence without the need for the Commissioner to be examined as a witness. The court may examine the Commissioner as a witness only if it considers it necessary. Therefore, the courts below erred in ignoring the report solely because the Commissioner was not examined. The High Court allowed the appeal, set aside the judgments of the courts below, and remanded the matter to the trial court for fresh decision after considering the Commissioner's report and giving an opportunity to the parties to lead further evidence if necessary.
Headnote
A) Civil Procedure - Commissioner's Report - Admissibility - Order 26 Rule 10(2) Code of Civil Procedure, 1908 - The courts below erred in ignoring the Commissioner's report and map solely because the Commissioner was not examined as a witness. Under Order 26 Rule 10(2) CPC, the report of the Commissioner is admissible in evidence without formal proof, and the court may examine the Commissioner as a witness only if necessary. The substantial question of law was answered in favor of the appellants, and the matter was remanded for fresh consideration. (Paras 1-8)
Issue of Consideration
Whether the courts below were justified in ignoring the Commissioner's Report along with map on the ground of non-examination of the Commissioner as witness?
Final Decision
The second appeal is allowed. The judgments and decrees of the courts below are set aside. The matter is remanded to the trial court for fresh decision after considering the Commissioner's report and giving opportunity to parties to lead further evidence if necessary. No order as to costs.
Law Points
- Commissioner's report is admissible without examining Commissioner as witness
- Order 26 Rule 10(2) CPC
- Substantial question of law
- Second appeal
