1998 (2) TMI 614

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....ion. It appears that in a suit pending before the Trial Court a Commissioner was appointed who submitted his report to the Court. Objections were filed against the report. One of the parties who are the petitioners at present filed an application before the learned Trial Court after the report was filed by the Commissioner, seeking permission to cross-examine the Commissioner. This application has....

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....rt :  Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."  Rule 10 lays down :--  "10. (1) The Commissioner, after such local inspection as he deems the necessary and after reducing to writing the evidence taken by him, shall return such evidence, toget....

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....fit."  According to Sub-rule (2) lo Rule 10 of Order XXVI, the report of the Commissioner and the evidence taken by him during the inspection shall be evidence in the suit and shall form part of the record. Therefore, there is no controversy with regard to admissibility of the report as evidence during the trial and making the report of the Commissioner part of record. However, befor....

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....lly wants that the Commissioner be examined, the Court has no option but to examine the Commissioner. Unless that is done, the Commissioner's report can neither form part of the record nor it can become a piece of evidence which could be relied upon at the stage of disposal of the suit. 3. I am fortified in my view by the judgment of Calcutta High Court in Gourhari Das v. Jaharlal AIR1957Ca....