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Court cannot be used as a tool to create evidence; Application under Order 10 Rules 9 and 10A CPC rejected

HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.
CMPMO No. 465 2017

Date of decision: 18th July, 2018

Rajinder Singh ..Petitioner

Versus

Ran Singh and others ..Respondents

Coram: The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

For the Petitioners : Mr. Dheeraj K. Vashishtha, Advocate

For Respondents : None

Ajay Mohan Goel, J. (oral)
As per report of the Registry, respondents No. 2 to 8 stands duly served. However, none has entered appearance on their behalf. Hence, they are proceeded against ex-parte.

2. By way of this petition, petitioner has challenged order, dated 16th August, 2017 (Annexure P-5), passed by learned trial Court vide which an application, filed by the present petitioner under Order 26 Rules 9 and 10-A of the Civil Procedure Code, stands dismissed. By way of the said application, so filed before the learned trial Court, it was prayed that revenue expert be appointed to prepare excerpt and to report the history of land as per pedigree table, in view of the fact that it was not possible for the plaintiff to do and in the absence of the same, plaintiff was not in a position to prove his case.

3. From the documents,appended with the petition, it is apparent that this application was opposed by the non applicant(s) before the learned trial Court.

4. Vide impugned order, said application stands rejected by the learned trial Court by holding that it is for the plaintiff to prove his case by leading his own evidence and he should not depend upon the Court to collect evidence. Further, while dismissing the application, it was observed by the Court that the matter was an old one and, therefore, also at the fag end, plaintiff could not be given an opportunity to collect evidence. Feeling aggrieved, plaintiff has filed this petition.

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5. I have heard learned counsel for the petitioner and also gone through the record, appended with the petition.

6. Learned counsel for the petitioner has vehemently argued that the impugned order is not sustainable in the eyes of law as the learned trial Court, while dismissing the application, erred in not .

appreciating that under the provisions of Order 26 Rule 10-A of the Civil Procedure Code, it was incumbent upon the Court to have had directed the revenue officer to prepare excerpt and the report of the suit land as per pedigree table as in the absence of the same, adjudication in the matter was not possible and Order 10-A of Rule 26 of the Code of Civil Procedure had to be interpreted liberally to meet such like situation. On these basis, it was submitted by the learned counsel for the petitioner that the impugned order is perverse, not based on sound reasoning and is liable to be quashed and set aside.

7. In my considered view, there is no merit in the contention of learned counsel for the petitioner. It is not in dispute that the suit was filed somewhere in the year 2008. On the basis of pleadings of the parties, issues were framed and evidence was also led. It is a matter of record that it is at the stage of hearing that an application was filed by the plaintiff under Order 26 Rules 9 and 10-A of the Civil Procedure Code.

8. Before proceeding further, it is relevant to take note of the fact that under Order 26 Rule 9 of the Civil Procedure Code, a Court can order local investigation in a suit, in which the Court deems .

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such investigation to be proper for the purpose of elucidating any matter in dispute etc. Similarly, under the provisions of Rule 10-A of Order 26 of the Civil Procedure Code, the Court, if it thinks it necessary or expedient in the interest of justice, can issue a commission to such person as it thinks fit wherein question arising in a suit involves in a scientific investigation, which in the opinion of the Court cannot be conveniently conducted before the Court.

9. It is apparent from the language of the said statutory provision itself that before ordering any investigation either under Rule 9 or Rule 10-A of Order 26 of the Civil Procedure Code, the Court has to be satisfied that the same shall be necessary for the purpose of adjudication. In other words, it is not a right conferred upon a party to call upon the Court to order an investigation. On a request so made by a party if the Court comes to the conclusion that it is expedient in the interest of justice that such investigation be held only then the Court exercises powers conferred on it under Order 26 Rules 9 and 10-A of the Civil Procedure Code.

10. In my considered view, in the present case, but obvious, .

onus is on the plaintiff to prove his case. It is not a case where either any scientific investigation is necessary or, as has been held by the learned court below, the Court deems a local investigation necessary for the purpose of elucidating in the matter in dispute. In fact, it has been clearly stated by the learned trial Court in the order impunged that the Court cannot be used as a tool to create evidence because it is for the parties to prove their case and the parties cannot depend upon the Court to collect evidence for it.

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11. It is pertinent to mention that the suit filed by the plaintiff/petitioner is to the effect that plaintiff, defendant No. 1 and proforma defendants are joint owners in possession of the suit land and that a decree of permanent injunction be passed against defendants No. 1 and 1A against forcibly ousting the plaintiff and proforma defendants from joint possession of the suit land.

12. Taking into consideration the dispute involved, it is but obvious that it is for the plaintiff to prove his case and plaintiff cannot call upon the Court to order investigation by appointing revenue expert to prepare excerpts and report history of the suit land, as per pedigree table so as to create evidence in his favour.

13. In view of the reasonings given hereinabove, I do not find any perversity with the order passed by the learned trial Court and thus, as there is no merit in the present petition, it is accordingly dismissed. Pending applications, if any, also stand disposed of.

18th July, 2018(K)
r ( Ajay Mohan Goel ),
Judge

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