Single judge rejected a writ petition challenging an order permitting respondents to cross-examine a court commissioner summoned at their instance, holding no interference under Section 154 of the Indian Evidence Act, 1872.
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wp-2603-10.sxw
SRJ
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.2603 OF 2010
Shri Pralhad S. Ghodake
.. Petitioner
V/s.
Dattatray G. Aapake &
Others... Respondents.
Mr. N.V.Bandiwadekar, for Petitioner.
CORAM :A.S.OKA,J.
DATE :7th APRIL,2010
P.C.:-
1.Heard learned Counsel appearing for the
Petitioner. The Petitioner is the Defendant and the
Respondents are the Plaintiff. A Court Commissioner was
appointed under Rule 9 Order XXVI of the Code of Civil
Procedure, 1908. The Court Commissioner was summoned at
instance of the Respondents for giving evidence. By the
impugned order, the Respondents have been permitted to ask
questioned to the Court Commissioner in the nature of
cross examination.
2.The learned Counsel appearing for the Petitioner
submitted that merely because of Court Commissioner
answered certain questions against the Respondents, the
Court cannot exercise the power of permitting the
Respondents to put the questions to the Court Commissioner
SRJ 2 wp-2603-10.sxw
in the nature of cross examination. He submitted that the
Court Commissioner was summoned at the instance of the
Respondents/Plaintiffs and, therefore, now the said
Respondents cannot be permitted to cross examine the
witness.
3.After having considered the submissions, I am of
the view that this is not a case where interference can be
made with the discretionary order passed by the trial
Court in exercise of power under section 154 of the Indian
Evidence Act, 1872. Under Rule 10 of Order XXVI of the
said Code, at the instance of the parties, the Court
Commissioner can be always examined on oath. In the
impugned order, it is noted that the Respondents/
Plaintiffs have raised an objection to the report of the
Court Commissioner. No fault can be found with the order
of the Trial Court which permits the Respondents to put
the questions to the Court Commissioner in the nature of
cross examination. There is no merit in the Petition.
Hence, the Writ Petition is rejected.
1 issue framed by the court
Whether a writ can interfere with the trial court's discretionary order permitting cross-examination of a court commissioner at the instance of the respondents under Section 154 of the Indian Evidence
2 provisions across 2 enactments
Shri Pralhad S. Ghodake
Dattatray G. Aapake & Others
A.S. Oka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court