1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3604 OF 2002 1 Ms Fatubai F. Lal 2 Amdad Hussein F. Lala 3 Hatim F. Lala 4 Abid F. Lala 5 Zehra F. Lala 6 Zarina F. Lala ...Petitioners vs. 1 Mrs.Kaweri Waman Chudnaik 2 Mangesh Waman Chaudnaik 3 Narayan Waman Chudnaik 4 Miss Nutan Waman Chudnaik 5 Santosh Waman Chudnaik ...Respondents Mr.Prakash Mahadik for the petitioners Mr.D.B.Sawant for respondents nos.1 to 5 CORAM :A.S.OKA,J. DATE : JANUARY 28, 2010 JUDGMENT : 1 Heard the learned counsel for the parties. By this Writ Petition under Article 227 of the Constitution of India, the petitioners who are the original plaintiffs have taken an exception to the orders dated 14th September 2001 and 24th July 2001 passed by the Court of Small Causes. A notice was taken out by the petitioners seeking permission to examine the Court Commissioner on oath. By order dated 14th September 2001, the said application has been rejected. Another notice was taken out by the petitioners praying for issuing witness summonses to three witnesses. That application has been rejected by the another impugned order dated 24th July 2001. 2 The learned counsel for the petitioners stated that 2 he is not pressing the Petition in so far as challenge to order dated 24th July 2001 is concerned and he is confining his prayer in the petition to the rejection of the interim notice no.3494 of 2001. He submitted that even if no objection was raised to the Commissioner s report, there was no justification for the trial Court for rejecting the prayer for examining the Commissioner on oath. He pointed out that on the basis of the averments made in the plaint, the Court Commissioner was appointed. He invited my attention to the reasons recorded by the learned trial Judge in the impugned order and submitted that the petitioners cannot be denied an opportunity to examine the Court Commissioner. 3 The learned counsel for the respondents supported the impugned Judgment and order. He pointed out that the application for examining the Court Commissioner was made at the fag end of the trial and therefore, the learned trial Judge has passed a discretionary order of rejecting the prayer. He submitted that as the Court Commissioner s report can be read in evidence, it was not necessary to examine the Court Commissioner on oath. 4 I have considered the submissions. The Court Commissioner was appointed in exercise of power under Rule 9 of Order XXVI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). Under sub- rule 2 of Rule 10 of Order XXVI of the said Code, it is provided that the report of the Court Commissioner shall be evidence in the suit and shall form a part of the record of the suit. Sub-rule 2 of Rule 10 provides that any party to the suit with the permission of the Court may examine the Court Commissioner in the open court on the matters touching the report or matters mentioned the report. Therefore, there is a power vesting in the 3 Court to examine the Court Commissioner on oath on the matters touching the report. 5 It is true that there is no objection raised in writing to the report of the Court Commissioner. The appointment of the Court Commissioner was made under Rule 9 of Order XXVI of the said Code to carry out local investigation. As the report of the Court Commissioner is to be read in evidence, considering the facts of the case the Court was not justified in preventing the petitioners/plaintiff from examining the Commissioner on oath. The application ought not to have been rejected even on the ground that the there is no objection raised to the report of the Court Commissioner. In the circumstances, impugned order dated 14th September 2001 deserves to be set aside. 6 Hence, I pass the following order : i) Impugned order dated 14th September 2001 is quashed and set aside. ii)Interim notice no.3494 of 2001 is made absolute. iii)Permission is granted to the petitioners to examine the Court Commissioner in the open Court in accordance with sub-rule 2 of Rule 10 of Order XXVI of the Code of Civil Procedure,1908. iv)It is obvious that the respondents will be entitled to cross examine the Court Commissioner. v) The other impugned order dated 24th July 2001 stands confirmed as the challenge to that order is not pressed by the petitioners. vi)Rule is partly made absolute in above terms. No order as to costs. JUDGE