Orissa High Court

Basanta Behera @ vs Rabindra Behera & Others ..... Opp. ... on 22 August, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

               IN THE HIGH COURT OF ORISSA AT CUTTACK
                          CMP No. 1030 of 2024

        [An application under Articles 226 and 227 of the
        Constitution of India]


        Basanta Behera @
        Basanta Kumar Behera                     ....     Petitioner

                                      -Versus-
        Rabindra Behera & others                 .....   Opp. Parties


        Advocate(s) appeared in this case:


        For the Petitioner :    M/s. Amit Prasad Bose, D. Sahoo &
                                D.K. Sethy, Advocates.

        For Opp.Parties    :   Mr. K.K. Mohapatra, Advocate
                              [ for O.P. No.1]
        _________________________________________________________
        CORAM:
                  JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

nd 22 August, 2025

SASHIKANTA MISHRA, J.

The petitioner is the defendant No.1- judgment

debtor of C.S. No. 54/2006-(1) of the Court of learned 1st

Additional Civil Judge (Sr. Division), Balasore. In the

present application filed under Article 227 of the

Constitution, he seeks to challenge the order dated

02.09.2024 passed by the said Court in final decree

proceeding arising out of the said suit whereby, the

defendant No.2 was permitted to cross-examine the Civil

Court Commissioner.

2. The facts, relevant only to decide the present

application are that the plaintiffs filed the suit for partition

and permanent injunction. The suit was decreed

preliminarily on 30.09.2013 declaring the entitlement of

the plaintiffs and defendants. The present petitioner

defendant No.1 carried appeal to the District Court in RFA

No.157 of 2013, but said appeal was dismissed on

03.03.2017. The plaintiff thereafter initiated final decree

proceeding, wherein a salaried Amin was deputed by the

Court for making partition of the suit land. The salaried

Amin submitted his report to the Court on 30.09.2023. The

plaintiffs did not file any objection to the Commissioner's

report but the present petitioner Defendant No.1 filed his

detailed objection. The defendant No.2 also did not file any

objection. The Commissioner was thereafter called as a

witness to prove his report. The petitioner-Defendant No.1

cross-examined the Commissioner. The defendant No.2

thereafter filed a petition to cross-examine Commissioner.

Defendant No.1 filed an objection challenging the

maintainability of the petition. The Court below, by the

order impugned, allowed the petition by holding that even

though defendant No.2 had not raised any objection to the

Commissioner's report yet he has the right to cross-

examine the Commissioner. The petition was therefore,

allowed.

3. Heard Mr. A.P. Bose, learned counsel for the

defendant No.1-petitioner and Mr. K.K. Mohapatra, learned

counsel for the defendant No.2-opposite party No.1.

4. Mr. Bose would argue that admittedly,

defendant No.2 had not filed any objection whatsoever to

the Commissioner's report. Though he can still cross-

examine the Commissioner, but such right ought to have

been exercised by him at the first instance. Once defendant

No.1 having objected to the Commissioner's report has

cross-examined the Commissioner, defendant No.2, not

having filed any objection, cannot be permitted to cross-

examine as he would then be in a position to patch up the

lacunae if any in the Commissioner's evidence as also

nullify the facts elicited from him in cross-examination by

defendant No.1. The Court below has proceeded on an

erroneous premise. Mr. Bose has relied upon the following

judgement in support of his contention.

"Sukana Mallik and others vs. Khatu Mallik1"

5. Per Contra, Mr. K.K. Mohapatra would argue

that it is the settled position of law that even if a party does

not object to the report of the Commissioner, his right to

cross-examine the Commissioner cannot be taken away.

While cross-examining the Commissioner, defendant No.1

did not file any application to not allow Defendant No.2 to

(1989) 67 C.L.T. 781

cross-examine. Mr. Mohapatra has relied upon the

following judgments in support of his contention.

"1. Vassiliades vs. Vassiliades and another2

2. Des Raj Chopra and Ors. vs. Shri Pooran Mal and Ors3.

3. Ranjit Singh and Ors. vs. State of Uttarakhand and others4."

6. From the facts narrated and the contentions

raised, it is evident that the question involved in the

present application is not so much as to the right of a party

to cross-examine the Commissioner regardless of filing of

objection by him but, the issue centers around the

question as to the sequence of cross-examination vis-a-vis

the parties.

7. It is not disputed by any of the parties that a

party not objecting to the Commissioner's report can also

cross-examine the Commissioner. This is what was decided

AIR 1945 PC 38

AIR 1975 Delhi 109

2024 (262) AIC 107: 2024(4) CCC25

in the case of Sukana Mallik (Supra), wherein this Court

held as follows;

"3. The Commissioner was appointed to make partition of the immovable properties under Order 26, Rule 13, C. P. С. Order 26, Rule 14, C P. C. deals with the provisions relating to the procedure to be adopted by the Commissioner and the manner of dealing with his report by the Court. There is nothing in the relevant provisions of sub- rule (2) of Rule 14 of Order 26, C.P.C. to suggest that merely on the ground that a party to the suit has not filed his objections to the Commissioner's report, he is liable to be debarred from cross- examining the Commissioner. The learned counsel for the petitioners could not produce before me any authority in support of his contention that as the plaintiffs did not file objections to the Commissioner's report they are precluded from cross-examining the Commissioner.

That apart, when a person is summoned by the Court and examined as a court-witness, he is just as liable to be cross-examined by the parties to the suit as any other witness. See Tarini Charan Chowdhury and others v. Sharada Soondaree Dossee and Gopal Lall Seal v. Manick Lall Seal. So in the instant case as the Commissioner was examined as a court- witness, both the plaintiffs as well as the defendants had acquired a right to cross-examine him.

So in any view of the matter, the learned Subordinate Judge was justified in rejecting the defendants' petition objecting to the cross- examination of the Commissioner by the plaintiffs."

8. Reading of the impugned judgment reveals

that the Court below has referred to the aforesaid judgment

to allow the application filed by defendant No.2 to cross-

examine the Commissioner. However, it appears that the

Court below has not read the judgment in its entirety,

wherein under paragraph-4, the following was also

observed:

"4. In this context, before disposing of the revision petition, I think it proper to deal with another aspect which would be incidentally arising in such situations. As held by the Patna High Court in Motiram Narwari v. Lalit Mohan Ghose, the usual practice in cases, where some of the defendants support the plaintiff's case and others oppose it, is to order that those who support the plaintiff's case should cross-examine the plaintiff's witnesses first, if they desire to do so, before the defendants who oppose the plaintiff's case do so. Any other practice would be inconvenient and might work as injustice to those defendants who oppose the plaintiff's case. So it logically follows that if there are different sets of defendants opposing the plaintiff in varying degrees, the set of defendants opposing the plaintiff must be allowed to cross-examine the plaintiff's witness to the last after the other sets of defendants have cross-examined him. Somewhat on the same analogy, after the Commissioner has filed his report under Order 26, Rule 14 if one of the parties to the suit files his objections to the report, but the other party does not file any such objections, then it would be proper that the party who has not filed any objection to the report should be asked to cross-examine the Commissioner (examined as a court-witness) in the first instance before the other party is called upon to cross-examine him."

9. Following the ratio decided in the above case it

is clear that the right of cross-examination of defendant

No.2 must be held to be restricted to the time before cross-

examination by defendant No.1 since the latter had

objected to the Commissioner's report, whereas he himself

had not. It is quite obvious that if the defendant No.2, who

not having objected to the Commissioner's report implicitly

supports it, would be in a favorable position if allowed to

cross-examine the Commissioner after cross- examination

by defendant No.1. It was open to defendant No.2 to have

objected to the Commissioner's report or to seek

permission to cross-examine the Commissioner at the first