Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7950 of 2018 Petitioner :- Dr. Krishna Pal Singh Respondent :- Durga Prasad Counsel for Petitioner :- Rishabh Agarwal,Tarun Agrawal Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner and have perused the record.
In Original Suit No.454 of 2002 a survey commission report was submitted along with affidavit of Survey Commissioner. To the said report, objections were filed. Before the survey commission report could be accepted, an application was filed by the respondent before the trial court to summon the Survey Commissioner for enabling his cross examination. That application was rejected by the trial court vide order dated 21.02.2018 on the ground that only after the survey commission report is taken on record that cross examination may be allowed. The aggrieved party moved another application under Order 26 Rule 2 CPC to allow cross examination of the Survey Commissioner. This second application was rejected by the trial court vide order dated 07.08.2018 by observing that such application ought not be repeated when already on previous application liberty was given to cross examine the Survey Commissioner after the report is accepted.
Aggrieved by the order dated 07.08.2018, the respondent filed Revision No.34 of 2018 in the court of District Judge, Jhansi. The learned District Judge by the impugned order dated 25.08.2018 straightaway allowed the revision; set aside the order dated 07.08.2018; and allowed the application for cross examination and fixed a date for the parties to appear to enable cross examination of the Survey Commissioner. It is this order dated 25.08.2018, which has been challenged by the petitioner on the grounds: (a) that revision against an interlocutory order of the nature passed on 07.08.2018 was not maintainable; (b) that the order was passed without giving opportunity of hearing to the petitioner; and (c) that the cross examination of the Survey Commissioner ought to be considered only after survey commission report is taken on record.
The grounds taken by the learned counsel for the petitioner may have some substance to the extent that the revisional court ought not to have passed an order without giving opportunity of hearing to the other side as also that the order impugned might not have been revisable but that by itself may not be sufficient for this Court to exercise its power of superintendence under Article 227 of the Constitution to interfere with an order which subserves the ends of justice and causes no serious prejudice to the petitioner.
There is no provision in the Code of Civil Procedure which may prohibit a court from allowing cross examination of a Survey Commissioner even before accepting the survey commission report on record. In fact, if a Survey Commissioner is allowed to be cross examined by the court and thereafter it is found that for certain reasons the report is not acceptable a fresh report can be obtained by specifying the parameters on which report be submitted. This would save a lot of judicial time.
Under the circumstances, this court declines to interfere with the order impugned as the same subserves the ends of justice. However, considering that the suit is of the year 2002, it is hereby provided that, in absence of any legal impediment, the trial court shall ensure that the suit proceeding is brought to its logical conclusion, without entertaining unnecessary adjournments from the parties.
With the aforesaid observation/direction, the petition is
disposed off.
Order Date :- 31.10.2018 AKShukla/-