Full Judgment
1. Challenge is to the Order No.210 dated February 9, 2000 and Order No.212 dated April 26, 2000 passed by the learned Civil Judge (Senior Division), nd Additional Court, Burdwan in Title Suit No.129 1989.
2. The short fact is that the plaintiff / opposite party herein instituted a suit for declaration of title, mandatory injunction and other reliefs. The petitioners are contesting the said suit by filing a written statement denying the material allegations raised in the plaint. 2
3. During the pendency of the suit, the defendants / petitioners herein filed an application for local investigation and that application was allowed. Accordingly, Mr. Dilip Kumar Chatterjee, learned advocate was appointed to hold the local investigation.
4. He submitted his report. He was examined in the Court but his cross-examination could not be completed. The defendants filed an application for expunge of some portion of the deposition of the Commissioner and that application was rejected. Being aggrieved, this application has been preferred.
5. Now, the point for consideration is whether the impugned order should be sustained.
6. Upon hearing the learned counsel for the petitioners and on going through the materials on record, I find that Mr. Dilip Kumar Chatterjee was appointed to hold the local investigation of the premises in suit as per writ issued to him. He held investigation in presence of both the parties. Thereafter, he filed the report.
7. That report was accepted by the Court. The suit was at the stage of recording evidence. The learned Commissioner was also examination-in-chief and he was cross-examined by both the parties on January 30, 1998 and March 31, 1998. The learned Trial Judge has recorded that the petitioners herein have cross-examined the learned Commissioner thoroughly. It is the contention of the petitioners that certain facts have been incorporated in the deposition of the Commissioner subsequently, although such statements do not appear in the report submitted by the learned Commissioner. It is also contended by the petitioners that the learned Commissioner had described ‘kha’ property as ‘kha-I’ in his report. However, the report is nothing but a piece of evidence to be considered along with other evidence. The learned Commissioner is not available anymore and as such, the petitioners have prayed for expunge of the evidence of the learned Commissioner.
8. There is no provision for expunge of the evidence of a witness when his cross-examination could not be completed for any reason, such as, death or beyond the control under the ordinary process of the Court or like that. Anyway, it has been observed by the learned Trial Judge that the learned Commissioner was examined thoroughly on January 30, 1998 and March 31, 1998.
9. Under the circumstances, the question of expunge of the evidence of the deposition of the learned Commissioner does not arise. However, if it is found that the evidence tendered by the Commissioner is contrary to the report submitted by him earlier and that there is no chance of cross-examination of the Commissioner anymore, the Trial Court is at liberty to deal with the evidence as adduced by the learned Commissioner and he shall decide whether the report should be accepted or not. It is up to the learned Trial Judge as the situation demands. For that reason, expunge of the evidence of the learned Commissioner with regard to a particular statement is not at all necessary. At best, his report may not be accepted or accepted in part according to the situation.
10. Accordingly, I am of the view that the learned Trial Judge has rightly concluded with regard to the prayer of the petitioners. There is no scope of interference with the impugned order. The revisional application fails to succeed. It is disposed of in the manner indicated above.
11. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.