1. The defendant in a suit for declaration of title, recovery of possession and permanent injunction being Title Suit No.81 of 2002, pending before the learned Civil Judge (Junior Division), 1st Court, Paschim Medinipur, has filed this revisional application being aggrieved by an order dated June 18, 2019 by which an application filed by the defendant/petitioner dated December 3, 2014 for allowing cross- examination of the learned Commissioner was rejected. The operative portion of the order impugned is quoted below:"On going through the record I find that vide order no.46 dt. 09.05.2008 this court after hearing both the plaintiff and the defendant accepted the commission report on contest. The defendant challenged the said order before the Hon'ble High Court and the Hon'ble Court was pleased to dispose of the revisional application with statement that no interference with the impugned order was necessary. The defendant thereafter filed a petition for reinvestigation which was also rejected by this court vide order no.55 dt. 09.07.2009 and challenging the said order the defendant moved the Hon'ble High Court and the Hon'ble Court was pleased to dismiss the revisional application. The present petition is the third in a row and it is apparent that the defendant is somehow trying to delay and drag the suit. I find no reason to allow the present petition whose fate has already been decided by two earlier orders of this court. The defendant should be imposed with cost for the dilatory tactics adopted by him."2. It is submitted by the petitioner that the learned Commissioner failed to appear for cross-examination as recorded in the order dated January 28, 2008 and the cross-examination of the Commissioner which had begun had not been concluded. Thus, the application filed by the defendant/petitioner for cross-examination of the Commissioner should have been allowed. It is submitted that until and unless the cross- examination of the Commissioner is concluded, the suit could not have proceeded and the Commissioner's report should not have been accepted.3. Records reveal that the examination of the Commissioner was done by the defendant. The said fact has also been recorded by this High Court in an order dated April 1, 2009 in C.O. No.2616 of 2008 filed by the petitioner. The relevant portion of the order is quoted below:"A survey passed commissioner was appointed by the learned Trial Judge for the said purpose. The investigation commissioner submitted his report after investigating the points of investigation as mentioned in the application for local investigation.The defendant was not happy with the report as according to the defendant, the said report was not prepared properly. The investigation commissioner was also cross-examined by the defendant in court.Since the report was accepted by the learned Trial Judge by discarding the objection submitted by the defendant against the said report, the defendant has filed the instant application under Article 227 of the Constitution of India before this Court. Let me now consider as to how far the learned Trial Judge was justified in rejecting the petitioner's objection in the facts of the instant case.The provision contained in Order 26 rule 10(2) of the Code of Civil Procedure makes it clear that the report of the Commissioner and the evidence taken by him (but not evidence without report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may 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 the investigation.The said provision makes it clear that once such a report is submitted, it will automatically form part of the record and will be read as evidence of the suit. As such, this could holds that the learned Trial Judge had no option but to accept the said report and to make the same as a part of record.In my view, the learned Trial Judge rightly accepted the said report by making it a part of the record.As I have already indicated above that the investigation commissioner has already examined by the defendant in court. As such, it is made clear that at the time of hearing of the said suit, the report of the investigating commissioner which is a part and parcel in the said suit will be considered along with the order evidence in the suit and the learned Trial Judge will consider the evidentiary value of the said report after taking note of the evidence of the said commissioner at the time of hearing of the suit.This court, thus, hold that no interference with the impugned order is necessary at this stage.The revisional application, thus, stands disposed of with the above observation."4. C.O. No.2616 of 2008 was filed by the petitioner alleging that the report of the survey passed commissioner was not proper and the same should not have been accepted. This Court held that the Commissioner's report was rightly accepted after giving an opportunity of cross- examination of the Commissioner to the defendant and the question of rejecting the report of the Commissioner did not arise. The learned Trial Court was directed to consider the evidentiary value of the said report after taking into account the evidence of the Commissioner, as recorded in the proceedings. It also appears that thereafter the petitioner had once again filed another application and prayed for re-local investigation commission before the learned Court below and by an order dated July 9, 2009 the application for re-local investigation commission was rejected by the learned Court below. The ground assigned by the petitioner for the necessity of such re-local investigation commission was that the petitioner had not completed his cross-examination of the Commissioner who failed to appear on a particular date and certain vital questions which were required to be put to the Commissioner at the cross- examination on that date could not be put. The said application was rejected by the learned Court below by an order dated July 9, 2009. The said order was challenged by the petitioner by filing a civil revisional application being C.O. No.2744 of 2009. The said civil revisional application was dismissed by the High Court. Thus, on two occasions this Court had come to the conclusion that the report of the learned Commissioner was rightly accepted and as the petitioner had got an opportunity to cross-examine the Commissioner no further reopening of the commission either by rejecting the report of the learned Commissioner or by allowing re-local investigation commission was necessary. It further appears that the learned Court below by an order dated May 9, 2008 had accepted the report of the learned Commissioner on contest. The said order was challenged before this Court and this Court rejected the civil revisional application by upholding the order dated May 9, 2008. The order of this Court has already been quoted herein before.5. Thereafter on several occasions adjournments were sought for by the defendant/petitioner and the defendant/petitioner filed an application for re-local investigation commission on the grounds as discussed in the foregoing paragraphs of this order. The said application for re-local investigation commission was dismissed by the learned Court below on July 9, 2009, which was challenged before this Court. Sometime in 2014, the said revisional application was dismissed thereby affirming the order dated July 9, 2009 wherein the learned Court below found that there was no scope for re-local investigation commission on the same point.6. Thereafter the petitioner filed an application for cross-examination of the learned Commissioner on December 3, 2014. The said application was rejected by the learned Court below on the ground that when the report of the learned Commissioner was upheld by the Hon'ble High Court and the Hon'ble High Court affirmed the order of the learned Court below rejecting the re-local investigation commission, there was no scope for reopening the issue and this was nothing but dilatory tactics adopted by the defendant/petitioner to drag the suit.7. I do not find any illegality and irregularity in the order dated June 18, 2019 passed by the learned Ci
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vil Judge (Junior Division), 1st Court, Paschim Medinipur as the acceptance of the report of the learned Commissioner has been upheld by this Court with a direction that at the time of trial the evidence of the learned Commissioner as also the report will be considered in its true perspective. The orders of the High Court has been accepted by the petitioner and the application for further cross- examination of the survey passed commissioner is barred by the principles of Res judicata and/or Constructive Res judicata. Moreover the petitioner has not allowed the suit to progress, by filing such frivolous applications. The same is abuse of process of court and the learned Court below has rightly imposed the cost.8. This revisional application is, thus, dismissed.9. There will be, however be no order as to costs.10. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.