1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.48/2007. 1. Smt.Laxmi Vishnu Kumbhar, Major of Age, Married, Housewife, 2. Shri Vishnu Kumbhar, Major of age, Both residing at House No.11, Ward No.7, Bhatulem, Panaji- Goa. ..... Appellants. Versus 1. Shri Vassudev Pandurang Naik, son of late Pandurang Naik, Major of Age, married. 2. Smt. Vassanti Vassudev Naik, wife of Vassudev Pandurang Naik, Major of age, Both residing at House No.12., Ward No.7, Bhatulem, Panaji- Goa. ..... Respondents. Mr. Nigel D'Costa Frias,Advocate for the appellants. Mr. G. Teles holding for Mr. C.A.Ferriera, Adv. for the respondents. Coram :- S. A. BOBDE, J. Date : - 01st April, 2008. ORAL JUDGMENT : 1. Admit. 2. Heard by consent. The only substantial question of law argued by the learned Counsel for the appellants is whether the Commissioner's report relied upon by the Lower Appellate Court could 2 have been treated as evidence in the absence of any cross-examination by the other party. There is no dispute that the appellants had requested for permission for the cross-examination of the commissioner on which apparently, no order was passed. Yet, the Appellate Court has relied upon the commissioner's report and decreed the suit of the respondents. There is merit in the contention of the appellants. Indeed the report of the commissioner which has not been subjected to cross-examination could have been found part of the evidence as is clear from two judgments i) AIR 1988 ANDHRA PRADESH 202 BY BILAL NAZKI, J. and ii) AIR 2003 BOMBAY 52 BY A.M. KHANWILKAR, J. 3. In this view of the matter, the decree of the Lower Appellate Court is hereby set aside. The matter is remanded back to the Lower Appellate Court for fresh decision in accordance with law after granting permission to the appellants to cross-examine the commissioner. The Lower Appellate Court shall decide the appeal as expeditiously as possible and not later than 6 months after the parties appear before it and shall decide it afresh. The parties are directed to appear before the Lower Appellate Court on 21st April, 2008. S. A. BOBDE, J. SMA