IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 289 of 2007 Date of decision: 08.09.2010 Karan Singh & another …Petitioners. Versus Malkiat Devi & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. Sanjeev Kuthiala, Advocate. For respondents No. 1 to 4: Mr. Ramesh Sharma, Advocate, vice Mr. N.K. Thakur, Advocate. For respondent No. 7: Mr. Pawan Gautam, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 09.10.2007, whereby the application filed by the plaintiffs for appointment of Revenue Expert to prepare the excerpts and report the history of the land as per pedigree table, has been rejected. 2. The facts necessary for decision of this petition are that the petitioners (hereinafter referred to as ‘the plaintiffs’) filed a suit for declaration to the effect that the suit land is jointly owned and possessed by the plaintiffs and defendants No. 2 to 4, 8 and 9, as members of a joint Hindu Coparcenary Family, of which Shri Rangil Singh was the Karta. It was alleged that the Will executed 1 Whether the reporters of local papers may be allowed to see the Judgment? 2 by Shri Rangil Singh, dated 9.1.1984, in favour of defendants No. 1 to 4 qua the suit land is illegal, since Shri Rangil Singh had no right to bequeath the ancestral property in excess of his share. In the plaint itself, a pedigree table was also depicted. Written statement was filed. The correctness of the pedigree table was denied. It was also alleged that the suit property was not ancestral property, but was the self-acquired property of late Shri Rangil Singh. According to the petitioners-plaintiffs, the land in question was initially owned by one Kapura, who was succeeded by Mangal Singh. Rangil Singh inherited the land from Mangal Singh and as such the land was ancestral in the hands of Rangil Singh. According to the petitioners, the present Khasra numbers have changed over period of time due to settlement and consolidation proceedings and, therefore, it is necessary to appoint a Revenue Expert to prepare the excerpt of the suit land, not only showing the Khasra numbers existing prior to and after settlement /consolidation proceedings, but also the persons depicted in the revenue record as owners of the suit land. 3. This application has been rejected vide the impugned order only on the ground that the parties have to prove their case by leading their own evidence and cannot seek help of court in proving their case. This view of the learned trial Court is totally incorrect and against the law laid down by this Court in Shri Gulaba versus Hari Ram, 1982 Shimla Law Cases 85. 4. When the history of certain land, i.e. its Khasra numbers and ownership has to be traced up to more than four or 3 five generations, it cannot be done without the help of a Revenue Expert. It is only a Revenue Expert who will be able to trace out and link the old Khasra numbers with the new Khasra numbers in the revenue record. This is also essential to help the Court in passing an effective decree which can be enforced in accordance with law. In case an excerpt is prepared by a Revenue Expert, recording of unnecessary evidence can also be avoided. In such circumstances, the appointment of a Revenue Expert to prepare an excerpt in accordance with law is, in fact, necessary and proper for adjudication of the case. 5. The powers of a civil court under Order 26 Rule 9 CPC to appoint a Local Commissioner have been very succinctly explained in Bali Ram versus Mela Ram & another, 2002 (3) Shimla Law Cases 131, wherein a learned Single Judge held as follows: “Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as ‘the Code’), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order 26 of the Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary 4 that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.” 6. It has been urged on behalf of the respondents that the suit is the second round of litigation and also that the application was filed at a late stage, hence, the same should be rejected. The fact that the present suit is the second round of litigation is immaterial for deciding such an application and what is the effect of the previous suit is already the subject matter of the issues framed in the suit, which shall be decided at the final hearing of the case. As far as delay is concerned, on perusal of the record, I find that after issues were framed, only on one date, evidence of the plaintiffs was not present, whereas on other dates, suit was adjourned for reasons beyond the control of the plaintiffs. On the next date, the application for appointment of Revenue Expert to prepare the excerpt was filed. 7. This Court has repeatedly held that merely because an application is filed, the Court should not stay the proceedings in the main suit. In the present case also, the application for appointment of Revenue Expert could have been decided and evidence of the plaintiffs could also have been recorded. This the court has failed to do. 8. This Court had earlier also order that merely because an application is filed, the court should not just adjourn the case on 5 the asking of any party. It has been found that when a case is fixed for evidence, just to delay the proceedings, an application is filed and more often than not, the witnesses are sent back un-examined. This procedure is totally wrong. There is no reason why the statements of the witnesses should not be recorded and the application, if any, filed by any party also simultaneously taken up for consideration. In fact, in case, the court finds that the application is totally misconceived, there is no need to call for any reply and the application can be dismissed at the initial stages itself. In case, reply is called for, then also the statements of the witnesses should be recorded. Later, if the application is dismissed, the case will have proceeded in its normal course. In case the application is allowed and it is felt that some witness has to be recalled, then it will only be necessary to recall such witness. 9. In fact, this court as far back as 30.5.206 in P.R. Rana versus Ajay Kaushish and others had made the following observations: “Merely on the request of the counsel dealing with the case the witnesses were discharged without realizing that this may cause great hardship to the witnesses. Witnesses need to be treated with respect by the courts. Their difficulties should also be taken into consideration. It should be the endeavour of all courts to ensure that the witnesses are not put to any inconvenience and that they are not summoned to court time and again for no fault of theirs. Witnesses are to assist the court. They haven no personal axe to grind. They normally do not have any personal interest in the matter. This is 6 more especially true with regard to the official witnesses. The witnesses and the public at large will loose faith in the entire judicial system if they are time and again called to court, made to wait for the whole day and at the end of the day told that they can go home and will be called again. If a witness does not appear consequent to the summons issued by a curt, the court can take strict penal action in terms of Order 16 CPC. There should a corresponding responsibility on the courts to ensure that all efforts are made to examine the witnesses ad that they should not be discharged without valid and cogent reasons. This court has noticed with dismay the attitude of the courts in adjourning with alacrity cases even when witnesses are present. This should not be done. As observed above, the court should ensure that minimum amount of inconvenience is caused to the witnesses. The trial Courts should ensure that as far as possible the statement of all the witnesses present should be recorded. Preference should also be given to the official witnesses who have traveled from out-station to appear in court. This court has repeatedly given directions that doctors and other government officials should be examined in the earlier half of the day. It is also depressing to note that the learned Rent Controller took more than one year to decide two small applications for permission to lead secondary evidence and for permission to produce additional documents. These applications should normally be decided on the date when the reply is filed. Normally such applications do not call for any rejoinder and the matters should be decided at the earliest.” 10. In view of the above discussions, the petition is allowed. The order of the learned trial Court is set aside and the 7 learned trial Court is directed to appoint an appropriate Revenue Officer as Expert to prepare the revenue excerpt of the suit property from the time of Kapura till the present in accordance with law. 11. The petition is disposed of in aforesaid terms. The parties through their counsel are directed to appear before the learned trial Court on 18th October, 2010. Since the suit is more than ten years old, the plaintiffs shall not be given more than two opportunities to lead their evidence. It shall be the responsibility of the plaintiffs to take dasti summons and serve the witnesses. However, in case witnesses are served, but do not appear, the court shall take coercive steps to examine the witnesses. The defendants shall also be given three opportunities to lead their evidence. The learned trial Court shall make an endeavour to decide the case as early as possible and in any event not later than 31st March, 2011. If possible, the case shall be taken on day to day basis. The Registry is directed to ensure that records of the case are sent back to the trial Court so as to reach well before the said date. 12. The Registrar General is directed to send a copy of this judgment to all the Judicial Officers in the State to ensure that in future witnesses are not discharged and cases are not adjourned only because some application has been filed. (Deepak Gupta) Judge September 8, 2010 (rajni) 8