( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3596 OF 2010 1. Shakuntalabai d/o Jaiwantrao Ratnalikar @ Chhaya w/o Bhaskarrao Bhosekar, R/o Hyderabad (A.P.) through General Power of Attorney (real son) Satishkumar s/o Bhaskarrao Bhosekar, R/o Hyderabad. 2. Kranti d/o Jaiwantrao Ratnalikar, @ Uma w/o Pramodrao Kakani, R/o Gangakhed, dist. parbhani. 3. Anil s/o Jaiwantrao Ratnalikar, R/o Dharmabad, Tq. Dharmabad, District Nanded. PETITIONERS VERSUS 1. The President (for himself and Board of Directors), Hutatma Pansare Education Society, Dharmabad, Tq. Dharmabad, Dist. Nanded. 2. The Secretary, Hutatma Pansare Education Society, Dharmabad, Tq. Dharmabad, Dist. Nanded. 3. The Chief Officer, Dharmabad Municipal Council, Dharmabad, Tq. Dharmabad, District Nanded. RESPONDENTS .... Mr. Shripad Kulkarni, advocate for the petitioners. Mr. A.G. Godhamgaonkar, advocate for the respondents No. 1 and 2. .... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th July, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent of learned counsel for the parties. 2. By this petition, the petitioners challenge order dated 30th March, 2010, rendered by Civil Judge (S.D.), Biloli, wherein their application (Exh-182) filed in Special Civil Suit No. 5/2004 came to be rejected. 3. The dispute lies in a narrow compass. The petitioners are original plaintiffs. On their application, Taluka Inspector of Land Records (TILR) was appointed to measure the lands in question, including their land with a view to locate the alleged encroachment. The petitioners’ case is that their land was encroached over by the respondents and such encroachment was required to be determined after carrying out joint measurement of both the lands. The application was allowed and the TILR was appointed as a Court Commissioner. He carried out joint measurement as per directions of the Court. He submitted a report alongwith ( 3 ) measurement map. The map submitted by the TILR and his report, however, were not acceptable to the petitioners. The petitioners, therefore, submitted an application seeking permission to cross-examine the TILR and to obtain clarification regarding certain deficiencies which were allegedly found in executing the work as Court Commissioner. The application was rejected by the learned Civil Judge (S.D.) by the order impugned. 4. Heard learned counsel for the parties. 5. Before I proceed to consider the rival submissions, it may be stated that the learned Civil Judge (S.D.) did not take pains to consider the relevant objections which were raised by the petitioners in the application. He has passed rather cryptic order as follows : “ O The witness is summoned as per the application submitted by the plaintiff. As such, the plaintiff shall file affidavit of the witness as per his say/version. Request of the plaintiff to examine ( 4 ) witness by way of cross-examination is hereby rejected. Sd/- C.J.S.D. 30/3/10” Perusal of the impugned order reveals that the learned Civil Judge (S.D.) was under the impression that unless affidavit of the witness is filed by the petitioners (plaintiffs), the request for cross-examination was impermissible. 6. The report of a Court Commissioner is admissible in evidence without examining the Commissioner if it is not objected to by either party. Order-XXVI Rule 10 (1) to (3) of the Code of Civil Procedure reads as follows : “10. Procedure of Commissioner. - (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (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 ( 5 ) 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. (3) Commissioner may be examined in person. - Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.” Perusal of Rule 10 would make it amply clear that the report of the Court Commissioner shall form part of the record. By leave of the Court, the Court Commissioner may be personally examined in respect of any matter touching any of the work referred to him or mentioned in his report and the manner of investigation carried out by him. In other words, the Court Commissioner may be called as a witness in order to prove or disprove any of the matter touching the work assigned to him. 7. Counsel for the petitioners would submit that the Court Commissioner could not be examined by the petitioners because the report itself is not admitted and there are various objections raised regarding the report. He would submit that the Court Commissioner, therefore, becomes witness ( 6 ) of the Court. Per contra, counsel for the respondents No. 1 and 2 would submit that the cross-examination cannot be directed unless there is examination of the Court Commissioner and that the respondents will have the right to cross-examine the witness whose examination-in-chief may be taken by the petitioners. 8. The report of Court Commissioner is, no doubt, per se admissible in evidence. Even so, his formal examination- in-chief is required to be undertaken as provided under section 137 of the Evidence Act, 1972. The order of examination is as provided under section 138 of the Evidence Act. The Court may thereafter permit a party to cross- examine the witness called by it if the material in the report of the Court Commissioner is to be challenged. This permission can be granted under section 154 (1) of the Evidence Act. Section 154 (1) reads as follows : “154. Question by party to his own witness. - (1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.” ( 7 ) 9. Considering the proper procedure envisaged under the Evidence Act, it is necessary for the petitioner to first conduct formal examination-in-chief of the Court Commissioner by calling him as a witness and putting him in the witness box, notwithstanding absence of his affidavit, and then to seek leave of the Court to put questions to the witnesses as may be permissible to be put in the cross-examination. In other words, he may or he may not declare the witness as a hostile one, because section 154 does not make it necessary to declare a witness hostile, yet, allows a party to put questions to the witness as may be put by cross-examination. Sub-section (2) of section 154 of the Evidence Act would make it amply clear that the party, seeking leave to put such questions likewise permissible in the cross-examination, need not dislodge the witness or the part of his evidence. In this view of the matter, the impugned order is quite arbitrary and unsustainable. 10. In the result, the petition is partly allowed. The trial Court shall allow the petitioners to examine their witness and thereafter, if proper grounds are put forth, then to grant permission under section 154 (1) of the Evidence Act ( 8 ) to cross-examine the witness and also to permit the respondents/contesting defendants to cross-examine the witness further. The petition is accordingly disposed of. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp3596-2010