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2019 (2) TMI 1953 - BOMBAY HIGH COURTSeeking for appointment of Court Commissioner for measurement of the 'Abadi' land - requirement for proper adjudication of the suit - Order XXVI Rules 10 (2) and (3) of the CPC - HELD THAT:- A plain reading of Order XXVI Rules 10 (2) and (3) of the CPC, particularly subrule (2) thereof, shows that the report of the Court Commissioner and the evidence taken by him must be taken as evidence on record of the trial Court. But, it cannot be said to be conclusive and with permission of the Court, any of the parties to the suit can examine the Commissioner as regards any matter touching upon the facts mentioned in the report of the Commissioner. In this context, if the impugned order is perused, it appears that although the trial Court was certainly aware about the position of law in the context of Order XXVI Rule 10 of CPC, while applying the same to the present case, the trial Court committed an error. There appears to be self contradiction in the impugned order. It appears that the trial Court was aware about the fact that the objection was raised on behalf of the petitioners to the report of the Court Commissioner, but the same had been rejected by order dated 22/12/2017. The rejection or otherwise of the objection raised on behalf of the petitioners would not have any affect on the right of the petitioners to examine the Court Commissioner under Order XXVI Rule 10 of the CPC. The fact that the petitioners objected to the report of the Court Commissioner does show that they had refused to accept the same. Therefore, they were entitled to cross examine the Court Commissioner. This aspect of the matter was not correctly appreciated by the trial Court while passing the impugned order. The present Writ Petition is allowed and the impugned order is quashed and set aside and the application filed by the petitioners for permission to examine the Court Commissioner is allowed in terms of the prayer made therein.
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