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Apprehension of cross examination under Order- 26 R-2 does not have a legal foundation :High Court of Bombay

As per the provisions of Section 137 to 143 of the Evidence Act, the apprehension being entertained by the petitioners does not seem to have any legal foundation.In the present case, the petitioner who were the original plaintiff are impugning the order passed by the Trial Court rejecting the application they prayed for calling the Court Commissioner for examination under the enabling provision of Order XXVI Rule 10(2) of the Code of Civil Procedure. A single-judge bench comprising of Justice Mangesh S. Patil adjudicating the matter of Aminuddin v. Kalyan (WRIT PETITION NO. 5627 OF 2021) dealt with the issue of whether to allow the present writ petition or not.

They chose to articulate the prayer and were seeking permission to cross-examine the court Commissioner that by the impugned order the Trial Court has rejected the application, however, expressly observing that the petitioners would be at liberty to call the Commissioner for examination strictly in accordance with Order XXVI Rule 10(2) of the Code of Civil Procedure.

The petitioners submitted that the only anxiety being entertained by the petitioners is on account of the situation which he comprehends to be putting the petitioners in some kind of awkward situation, unless they make it clear that they were intending to call the Commissioner for cross-examination

It was also submitted that the rival submissions and after perusal of the impugned order along with the provisions of Order XXVI Rule 10 of the Code of Civil Procedure as also the provisions of Section 137 to 143 of the Evidence Act, the apprehension being entertained by the petitioners does not seem to have any legal foundation.

The court observed that that Order XXVI Rule 10(2) of the Code of Civil Procedure comprehends a situation where the Court Commissioner submits a report which may go in favour of a party and against the other, in order to extend an opportunity to the party against whom the report is submitted to demonstrate infirmities in the report that an opportunity is provided by the legislature to enable such a party aggrieved by the report of the commissioner to call and examine him. Conspicuously, the word “examination-in-chief’’ or “cross-examination” has not been used by the legislature. Needless to state that depending upon the replies, taking recourse to the provisions of the Evidence Act mentioned hereinabove a party may very well in a given state of affairs solicit permission of the Court to put leading questions to the Commissioner as well. It would be prejudging the issue as to what replies the Commissioner in the matter in hand would be giving after he is called as a witness.

The court also observed that the Trial Court seems to be alive to all such state of affairs and the law and has rightly rejected the application by observing that when the law does not contemplate any cross-examination simplicitor there was no reason to concede to the request of the petitioners and it has been vigilant enough to observe that the petitioners would be at liberty to call the Commissioner for examination in accordance with the provision of Order XXVI Rule 10(2) of the Code of Civil Procedure.

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