Tulsi Ram vs Dharam Chand and Others

Deepak Gupta, J.—By means of this petition, the petitioner (hereinafter referred to as the plaintiff) has challenged the order dated 17.3.2010 passed by the learned Civil Judge (Senior Division), Sarkaghat whereby he rejected the objections filed by the plaintiff to the report of the Local Commissioner.

The main ground raised in this petition is that the objections have been rejected without giving opportunity to the petitioner to lead evidence.

A learned Single Judge of this Court in Gopal Dass and Ors. v. Bismanchali Latest HLJ 2009 (HP) 959 , after following the judgment in Om Parkash Vs. Ved Parkash and Others, held as follows:

The reasoning of the learned District Judge that opportunity was not asked for and hence cannot be granted cannot be accepted. The ratio of the judgment of this Court is clear that it is also the duty of the court to grant sufficient opportunity to the parties to lead evidence in support of their respective objections. There is no dispute that the Court was bound in law to have provided an opportunity to the defendants/appellants herein to lead evidence in support of the objection filed to substantiate that the report was either not in concord with the factual situation or that it deserved to be varied, set aside, altered or changed. The view taken by the learned District Judge is too technical and cannot be sustained.

I, therefore, hold that sufficient opportunity was not granted to the appellants to lead evidence in support of their contention that the report could not be accepted. At least, examination of the Commissioner was required and if further required, evidence over and above that of the Commissioner. This question is accordingly decided in favour of the appellants and against the respondents.

If there are objections against the report of the Local Commissioner, it is essential that the Local Commissioner should be examined and an opportunity must be given to the party objecting to the report to cross examine the Local Commissioner.

The only dispute raised in this case is whether the Local Commissioner had fixed three pucca points in accordance with the instructions of the Financial Commissioner and incorporated in the High Court Rules and Orders. In such a case no other evidence is required except examining the Local Commissioner alone. The petitioner should have been given an opportunity to summon the Local Commissioner and cross examine him.

Since the suit was filed in the year 2000 and application for appointment of Local Commissioner was filed by the plaintiff himself after 8 years of the filing of the suit, the only relief which can be granted to the petitioner at this stage is to permit him to summon and cross examine the Local Commissioner in regard to the establishment of the three pucca points in accordance with the aforesaid instructions. The learned trial Court should have given an opportunity to the petitioner in this regard. In fact it would be better in such a case if the objections to the report of the Local Commissioner, after recording the evidence, are heard and decided at the time of final hearing of the suit because then the Court would have advantage of all the evidence of the parties before it.

In view of the above discussion, this petition is allowed and the order of the learned Trial Court is set-aside. The learned trial Court is directed to give one opportunity to the petitioner to summon the Local Commissioner and cross examine him.

Since the case is of the year 2000 the parties are directed to appear before the learned trial Court on 13th September, 2010 along with a copy of this order. The trial Court shall fix a date on or before 8th October, 2010 for recording the evidence of the Local Commissioner. The petitioner shall take dasti summons for the service of the Local Commissioner and it shall be his responsibility to serve him. Thereafter, after recording the evidence the learned trial Court shall decide the objections as well as the suit by hearing arguments together as early as possible preferably latest by 31st December, 2010.