IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1848 of 2006 1. RAJENDRA YADAV, Son of late Keshwar Yadav 2. Ajay Kumar, Son of Rajendra Yadav, both resident of village-Karkatbigha, P.S. Paliganj, District-Patna, at present residing at Mohalla-Khajpura Akashwani Road, P.S. Shastri Nagar, District- Patna. Versus 1.RAJESHWAR YADAV, Sonof late Keshwar Yadav. 2. Dharmendra Kumar 3. Upendra Kumar, both sons of Rajeshwar Yadav, all resident of village-Karkatbigha, P.S. Paliganj, District-Patna, at present resding at Mohalla-Khajpura Akashwani Raod,P.S. Shastri Nagar, District-Patna. ------------- 2. 20.04.2009 Heard learned counsel for the petitioners. From the impugned order dated 9.10.2006 it appears that earlier the Court had accepted the propriety of examination of Advocate commissioner in the suit. It was submitted that Dasti Summon was handed over to the plaintiff for service of the same on the Advocate Commissioner. However, since the plaintiff could not produce the Advocate Commissioner for his deposition, evidence of both sides were closed on 5.9.2006. On the next date i.e. on the date the impugned order has been passed, the plaintiff filed a petition for recalling of the order passed on earlier date and for calling the Advocate Commissioner for his evidence in the Court. It is obvious that in case, in spite of service of Dasti Summon on the Advocate Commissioner by the plaintiff the Advocate Commissioner did not appear in the suit for his evidence, it was incumbent upon the court to take steps through - 2 - the process of the Court for his appearance for his evidence. Since the court had earlier issued Dasti Summon to him, the necessity for recording his evidence in the ends of justice cannot be doubted. In the circumstances, it was not proper for the Court below to close the evidence only on account that in spite of service of Dasti Summon, the Advocate Commissioner did not appear and the plaintiff could not ensure his presence in the suit for his evidence. The Court was not power-less to take steps for appearance of the Advocate Commissioner at its own level. In the circumstances, the plaintiff is directed to file a fresh petition before the court below for calling the Advocate Commissioner for his evidence through process of the court and if after hearing the parties, the court below feels necessity for recording the evidence of the Advocate Commissioner in the ends of the justice, he shall do so. With the above observation and directions the revision application is disposed of. (J. N. Singh, J.) Ravi/-