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Judgment
Hari Nath Tiihari, J.—This is a Revision from an order dated 25th September, 1995 holding the objections filed by the plaintiff to the
Commissioner''s Report are not sustainable. The learned Munsiff observed in his order that Commissioner''s Report itself speaks roughly about
that to the tune of Rs. 4000/- damage will be caused by removal of strong room and lockers and therefore, the Commissioner according to the
Trial Court, has answered all the points as directed by the Court and it did not find any ground to refer back the matter or reject the
Commissioner''s Report.
The order of the Court rejecting the objections to the Commissioner''s Report is one of order of interlocutory in nature. It has been held by this
Court in the case of GOPALA SOMAYAJI C v. R. MADHAVA PAI AND ANR. 1998 (1) KarLJ 499 that an order refusing to reject the
Commissioner''s Report or in other words accepting the Commissioner''s Report as piece of evidence on record does not amount to case decided.
Rule 10 of Sub-rule 2 of Order 26 itself provides that the Report of the Commissioner and the evidence taken by him (but not the evidence
without the Report) shall be evidence in the suit and shall form part of the record. Rule 2 itself is declarative of the position that the report of the
Commissioner filed and taken on record, it shall be the evidence only, i.e. the evidence in the suit which shall form part of the record as evidence
will be recorded by the Court. It may be considered upon by the Court subject to other evidence, it may even be held not reliable at the time of the
decision of the case. Rule 2 further provides that the Court may summon to on an application being made by a party, examine the Commissioner
personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his Report, or as to the manner in which he
has made investigation, and conducted the same scientific or otherwise while submitting the Report. This Rule declares that the Report may be part
of evidence but it is always open to be accepted as reliable piece of evidence or to be considered unreliable, in light of other evidence, for that
purpose, the party has to be provided an opportunity to cross-examine as he desires. Thus, reading of the Rule indicates that when the Court had
taken the Report on record as the piece of evidence and thereafter what is to follow is that such an order even rejecting the objection cannot be
termed as a case decided. What Rule provides is that the party can apply for summoning of the Commissioner for being examined or cross-
examined and the Court may permit it and I am quite sure if the applicant applies, the Court (SIC) sympathetically consider that matter. This Court
in the case of Gopala Somayaji C v. R. Madhava Pai and Anr. has laid down the same principle of law and has taken the view that accuracy or
compliance of the Report cannot be said to be the jurisdictional error. In this view of the matter, I am of the opinion that the present Revision is
misconceived. The Trial Court had jurisdiction to accept the Report or to reject it, or to call for further Report. But it is always open to the parties
to adduce other evidence or cross-examine the Commissioner about the falsity of the Report. With these observations, the Revision is hereby
dismissed.