Commissioner’s Report is part of record –
Commissioner need not be examined as witness to
prove it : –
According to Order 26 Rule 10(2) the report of the
Commissioner shall be evidence in the suit and shall form
part of the record. But, either the Court on its own or the
parties with the permission of the Court are at liberty to
summon the Commissioner to examine him personally
touching any of the matter referred to him or mentioned in
his report. If the Court, for any reasons, is dissatisfied with
the report, it can also direct such further enquiry to made as
it shall think fit, according to sub-rule (3) of Rule 10. The law
is also settled in this regard. According to the decision was
held in Shaik Fathima Bi Vs. Shaik Nanne Saheb (died)
2005 (4) ALD 164 generally, the report of the Commissioner
being par;t of record can be considered as evidence
irrespective of the fact whether Commissioner is examined as
a witness or not. The Court overruled the tenability of the
objection raised by one party that the Commissioner’s report
cannot be relied upon when it was not marked as exhibit in
the evidence and also for the reason that the Commissioner is
not examined. At the same time, the Court expressed that
whenever the report of the Commissioner plays a vital role,
contention that reversal of judgment of trial Court made on
the strength of un-exhibited report of commissioner cannot
be sustained. The High Court cautioned the trial Courts that
when substantial objections are taken to the report of
Commissioner, it would be advisable and desirable to
examine the Commissioner for the purpose of having a clear
picture. But on that ground also, it cannot be said that the
report cannot be looked into by the Court unless the same is
exhibited or Commissioner is examined as a witness too.
https://wp.me/pcGW20-tn