1 wp8847.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 8847 OF 2011 The General Manager/Plant Incharge PETITIONER -VERSUS- Dagaji Damodar Bachhav and others RESPONDENTS ...... Shri S.P. Deshmukh, advocate for the petitioner ...... CORAM : S.V. GANGAPURWALA, J. DATE : 28th November , 2011. PER COURT : 1. The petitioner impugns the order passed by the learned trial Judge rejecting the application Exhibit-236 filed by the petitioner. 2. The plaintiff after examining himself and other two witnesses filed an application for issuing summons to the Commissioner Mr. S.G. Zawar. Trial Court allowed the application Thereafter, the plaintiff filed the evidence of the said Commissioner on affidavit. The present petitioner took objection to the same on the ground that the said Commissioner could not have been examined by the plaintiff. Plaintiff has not challenged the Commissioner's report and if the party has not challenged the Commissioner's report, he is not entitled to examine the said Commissioner. The said application is rejected. Aggrieved thereby, the present Petition. 2 wp8847.11 3. Shri Deshmukh, learned counsel for the petitioner submits that the name of the Commissioner did not figure in the list of witnesses and in such circumstances, the Court could not have issued summons to the Commissioner as a witness of the plaintiff without assigning any reasons as contemplated under Order 16 Rule 1 of the Civil Procedure Code. Learned counsel relies on the judgment of the learned Single Judge of this Court in the case of "M.M. Corporation V/s Juhu Vile Parle Development" reported at "2010(4) Mh.L.J. 931". Learned counsel further contends that the Commissioner is for all the purposes substitute of the Court. It is only if the Court feels it necessary then, in such circumstances, the party can cross examine the Commissioner. The provisions of Order 26 Rule 10(2) of the Code of Civil Procedure mandates that the Court should satisfy itself about the necessity to examine the said Commissioner and if the Court permits then only the party may cross examine but in no case the party is entitled to lead the examination-in-chief of the Commissioner as its own witness. This aspect has not been considered by the trial Court. 4. That Order 26 Rule 10(2) of the Civil Procedure Code permits any of the party with the permission of the Court to examine the Commissioner. In the present case, the plaintiff had applied for witness summons to examine the said Commissioner. The Court had allowed the 3 wp8847.11 said witness summons and thereafter the affidavit of the said Commissioner has been filed on record. There is nothing in Rule 26 Order 10(2) of the Civil Procedure to infer that the examination-in-chief of the said Commissioner can not be led by the party. The report of the Commissioner is being proved by the plaintiff. 5. The objection that the name of the said Commissioner does not appear in the list of witnesses, same can not be considered at this stage for the reason that the petitioner has not assailed the order issuing witness summons to the said Commissioner. After the said witness summons has been issued, the said Commissioner has filed an affidavit and now it is for the petitioner to cross examine the said Commissioner. 6. In view of the above, the Judgment in the case of M.M. Corporation referred supra would not be applicable. 7. In the light of the above, the Writ Petition does not call for any interference, as such is dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA] JUDGE sga/wp8847.11