After 15 Months’ Opportunity, Defendant Cannot Recall Court Commissioner for Cross-Examination on Suit’s Restoration, Orissa HC Holds

The petitioner, defendant No. 3 in a 2002 civil suit, sought to recall and cross-examine a Civil Court Commissioner whose report had been filed in 2005.

After the defendants were proceeded against ex parte and an ex parte decree was passed, the District Judge set the decree aside in 2019 and restored the suit, directing the defendant to adduce evidence as a last opportunity.

In 2022, the petitioner applied to recall the Commissioner; the trial court rejected the application on 30 November 2023.

The petitioner challenged that order under Articles 226 and 227 of the Constitution.

The High Court noted that the defendant had earlier been directed to take steps to secure the Commissioner’s attendance and that the trial record recorded the Commissioner as having been cross-examined on 17 April 2006.

The Court exercised its supervisory jurisdiction under Article 227 of the Constitution.

It treated the District Judge’s unchallenged restoration order—and its direction that the defendant adduce evidence as a last opportunity—as determining the stage at which the suit resumed; that stage could not be reopened in the present proceeding.

The Court distinguished Nanda Dulal Pradhan v. Dibakar Pradhan, (2024) 12 SCC 155, which permitted defendants, on the facts of that case, to participate and cross-examine witnesses after restoration, but did not establish a general entitlement to return a suit to an earlier stage.

It also invoked the principle in Quinn v. Leathem, [1901] AC 465, that a judgment is authority for what it actually decides and must be read in light of its facts.

The Court held that the petitioner had an opportunity to participate in the proceedings concerning the Commissioner’s report, including an earlier opportunity to cross-examine the Commissioner, but did not pursue it effectively.

The petitioner had also not sought permission to cross-examine the Commissioner in the appeal that resulted in restoration.

Because the District Judge directed the defendant to adduce evidence as a last opportunity, and that order had attained finality, the petitioner could not use the restoration to reopen an earlier stage and obtain another opportunity to cross-examine the Commissioner.

The cited authorities did not require a different result on these facts.

It held that the suit stood restored to the stage at which the defendant had been proceeded against ex parte; the interim order was vacated, and there was no order as to costs.