Meghalaya High Court
The President Bharat Sevashram Sangha vs The Secretary To The Govt. Of Meghalaya & ... on 13 February, 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH).
SHILLONG BENCH
CR (P) (SH) 41 of 2012
The President,
Bharat Sevashram Sangha,
A society registered under the
Societies Registration Act,
Head Office at 211, Rash Behari Avenue,
Kolkata-19, west Bengal
Duly represented herein by
Bhrahmachari Amit,
Secretary, Bharat Sevashram Sangha,
Shillong Branch, Plot No.42(1), Jail Road,
Shillong-793001, East Khasi Hills District,
Meghalaya. ::::: Petitioner
-Versus-
1A. The Secretary to the Govt. of Meghalaya,
The Meghalaya Secretariat, Shillong,
East Khasi Hills District.
1. The Under Secretary to the Govt. of Meghalaya,
Revenue Department, the Meghalaya Secretariat,
Shillong, East Khasi Hills District, Meghalaya.
2. The Deputy Commissioner,
East Khasi Hills District, Meghalaya.
3. The Additional Deputy Commissioner, (Revenue),
East Khasi Hills District, Shillong, Meghalaya.
4. The Extra Assistant Commissioner (Revenue),
East Khasi Hills District, Shillong, Meghalaya.
5. The Director of Land Records and Surveys,
Govt. of Meghalaya, Lachumiere, Shillong, Meghalaya.
6. The Additional Director of Land Records and Surveys,
Govt. of Meghalaya, Lachumiere, Shillong, Meghalaya.
7. Shri Gautam Bhattacharjee.
8. Ms.Kasturi Bhattacharjee.
9. Ms.Anamika Bhattacharjee,
All from serial 7 to 9 presently resident of Plot No.42,
Jail Road, Shillong-793001,
East Khasi Hills District, Meghalaya.
CR(P)No.(SH)41/2012 Page 1 of 8
10. Smt.Mitra Rani Paul,
W/o (L) Subash Chandra Paul,
R/o Plot No.42(2), Jail Road,
Shillong-793001,
East Khasi Hills District, Meghalaya. ::::: Respondents.
11. The Sub-Registrar,
East Khasi Hills District,
Meghalaya, Shillong.
12. Smti.Namita Bhattacharjee,
W/o Kishore Kumar Bhattacharjee,
R/o Plot No.42, Jail Road,
Shillong-793001,
East khasi Hills District, Meghalaya. ::::: Proforma Respts.
BEFORE
THE HON'BLE MR. JUSTICE P.K. SAIKIA
For the Petitioner : Mr. K. Paul, Adv.
For the Respondents : Mr. LR Das, Adv. for respdt.No.10.
Date of hearing : 13.02.2013
Date of Judgment : 13.02.2013
JUDGMENT AND ORDER (ORAL)
In this proceeding, the orders dated 29.10.2012 and 31.10.2012, passed by the learned Assistant District Judge, Shillong in T.S. No.23 (H) 2012 have been called into question.
2. I have heard Mr. K. Paul, learned counsel for the applicant and Mr. LR Das, learned counsel for the respondent No.10 at length. On the perusal of the record, I have found that State respondents and respondent No.10 have already entered appearance.
3. On my further perusal of the record, I have found that notice was sent to private respondents by registered post with AD. But, except respondent No.10, notice, sent to the other private respondents has not yet been returned. That steps were taken properly and that steps were taken more than two months before are also apparent from the record. Being so, in my CR(P)No.(SH)41/2012 Page 2 of 8 considered opinion, notices on those private respondents may deem to have been properly served. Since they remain absent, this proceeding would proceed exparte against them.
4. The brief facts, as it appears from the revision petition and which are necessary for disposal of this present proceeding are that the petitioner herein as being plaintiff in T.S. No.23(H)2013 had instituted a suit for a decree for declaration of his right, title and interest over a plot of land, more particularly, described in the Schedule to the plaint itself and same would be referred to hereinafter as the suit land. Along with the suit, an application under Order 39 Rule 1&2 had also been filed seeking injunction against the respondents therein and such miscellaneous proceeding was registered as Misc. Case No.69 (H) 2012.
5. The learned court below on taking cognizance of the suit, issued summons to the respondents therein vide order dated 07.08.2012. When defendants thereto entered appearance, the suit was posted for filing written statement and 29.10.2012 was fixed for filing written statement from the side of the defendants.
6. The respondent No.10, however, instead of filing written statement, as required, filed an application under Order 18 Rule 18 of the CPC alleging therein that the petitioner/plaintiff tried to alter the very nature and feature of the suit by putting structure on the suit land which has always been used as part for exit and ingress to the land of the private defendants. Having filed the application aforesaid, he prays the court to conduct inspection of the suit land at the earliest.
7. It has been alleged that the copy of the aforesaid applications under Order 18 Rule 18 of the CPC was not furnished to the petitioner/plaintiff although same was supplied to other defendants. What is more, the learned trial court too without offering any opportunity to the petitioner/plaintiff to ventilate his grievance against the prayer made in the application, above, CR(P)No.(SH)41/2012 Page 3 of 8 passed the order fixing 29.11.2011 for holding inspection of the suit land vide order dated 29.10.2011.
8. However, on 31.10.2011, the defendant No.10 once again approached the trial court seeking preponing of the date of holding inspection and on the basis of such application, learned trial court preponed the date for holding inspection to 05.11.2011 vide order dated 31.10.2011. Having found no other way out, the petitioner/plaintiff approached this Court by way of filing present revision proceeding seeking quashing of the orders aforesaid as such orders were passed in gross violation of the provisions of law which guides the Court in holding inspection as well as in violation of principles of natural justice. However, as the petitioner had to approach this Court urgently, he filed this proceeding without obtaining certified copies of the orders under challenge.
9. Since, the petitioner had approached this Court without the certified copies of the orders impugned, he subsequently placed those orders on record by the way of filing an additional affidavit. In elaborating his argument further, the learned counsel for the petitioner has submitted that in the terms of Rule 18 of Order 18 of the CPC, inspection can be held in order to appreciate the evidence on record for better understanding of the dispute before the Court so that such dispute can be adjudicated appropriately and accurately. However, such a provision cannot be utilized in a way to further the case of one of the parties to the proceeding which would invariably make the Court/Judge a witness to the dispute which such Judge/Court is asked to adjudicate. A plain reading of the provisions of Order 18 Rule 18 of the CPC, would make it clear.
10. In that connection, my attention has been drawn to the decision of the Hon'ble Bombay High Court in the case of Raghuvir Harischandra Salgaonkar vs. Smt.Saraswati Pundalik Salgaonkar reported in AIR 1984 Bombay 284, which is reproduced below:-
CR(P)No.(SH)41/2012 Page 4 of 8
"9. ..........................Now plain reading of this rule would indicate that such a memorandum is only to be a part of the record of the suit and the Legislature does not say that it has to be treated as evidence in the suit. It is obvious that such memorandum or the notes of inspection based on the observations of the Judge cannot be treated as evidence in the suit or proceedings and cannot be on par with any evidence because in that case the Judge himself would be a witness and the party against whom the memorandum or the notes go would have no opportunity of cross-examining the Judge. In other words, in using the notes as evidence the Judge would render himself as a witness in the case which cannot be countenanced under any system of law. The question then is what is the purpose of empowering the Court to inspect the site. It is now well settled that this power had been conferred on the Court with a view to enable it to understand and appreciate the evidence on record. In a given case the Judge may not be in a position to properly understand and appreciate the evidence on record. In a given case the Judge may not be in a position to properly understand and appreciate the oral and documentary evidence on record without himself seeing the situation on the spot. It is to this limited extenl that the Court is permitted to see the spot and draw its notes. This power therefore, cannot extend to enable the Court to rely solely or wholly on its observations disregarding the evidence which is on record. As has been stated by a Division Bench of this Court in Amratlal v. Land Acquisition Officer (AIR 1945 Bombay 302) that due weight would be attached to what the Judge observes in his inspection but the purpose of local inspection is not to make it a substitute for evidence, but to assist in its appreciation....................."
11. Placing reliance on the above decision, the learned counsel for the petitioner/plaintiff has submitted that the order(s) under which the learned Judge proposed to conduct inspection of the suit land on 05.11.2011 even when the defendants therein have not filed their written statements, much less their rendering evidence before the Court to be appreciated at the time of inspection are wholly and completely illegal and irregular and as such, this Court is duty bound to set aside such order(s) on allowing the proceeding initiated by the petitioner.
CR(P)No.(SH)41/2012 Page 5 of 8
12. On the other hand, learned counsel for the respondent No.10 submits that the learned trial court commits no error whatsoever in passing the orders impugned. In fact, the orders were passed under certain compelling circumstances since after the institution of the suit in question, the petitioner had done everything possible to change the nature and feature of the suit land by constructing a structure on the suit land which has, as stated above, all along been used as a part for exist and ingress to the land of the respondents/defendants.
13. According to the learned counsel for the respondent No.10, the orders under challenge would not only help the Court to preserve the suit land in the condition in which it exists on the date on which the suit was filed but would also help the Court to decide the matter appropriately and accurately in the light of evidence that may come up before the Court during trial.
14. Referring to the phrase "the court may at any stage of a suit inspect any property or thing concerning which any question may arise" so appears in the Order 18 Rule 18 of the CPC, it has been contended that the court may at any stage of the suit may conduct inspection and therefore, it is not necessary that before holding such inspection, court must record the evidence of the witnesses. He, therefore, submits this Court to dismiss the proceeding on affirming the orders impugned.
15. In order to bolster up his case, he also referred me to the decision relied on by the learned counsel for the petitioner/plaintiff. What is equally important is that, he also referred to the same paragraph in support of his contention which was also relied on by the learned counsel for the petitioner/plaintiff to show that orders in question are far from legal ones.
16. In order to appreciate the arguments, advanced by the learned counsel for the parties to know which side of the story is true, I find it necessary to appreciate the provisions of law in the light of decision, referred CR(P)No.(SH)41/2012 Page 6 of 8 to by the parties before this Court. For ready reference, the provision of Order 18 Rule 18 of the CPC is reproduced below:-
"18. Power of Court to inspect ---- The Court may at any stage of a suit inspect any property or thing concerning which any question may arise [and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit]".
17. On going through the aforesaid provision of law, I have found that the very purpose of the Order 18 Rule 18 of the CPC is to help the Court to understand well the evidence brought on record by the witnesses of the party(ies) before the Court and up to that limited extent, the Court can conduct inspection of any property or thing connected with the suit. Therefore, at any stage of the suit, in my considered opinion, means anytime after putting in evidence on record by the parties or anyone of them.
18. Here it needs to be remembered that if a Judge is allowed to conduct inspection of such property/thing even before recording the evidence then there is every possibility of such a Judge becoming witness to any of the parties to the proceeding before him. But such an eventuality has strongly been deprecated by the provisions of law which makes such inspection possible. In that view of the matter, a Judge cannot be allowed to make inspection of the suit land even before recording of evidence.
19. The learned counsel for the respondent No.10 has arduously argued that if the Judge inspects the suit land at a very initial stage, more particularly, even before recording of evidence that would help him to appreciate the evidence likely to come before the Court during trial. I have already found that such a proposition is not contemplated under the law. More over, it sounds pretty illogical and irrational as well that Judge should be allowed to conduct inspection of thing/property in order to appreciate the evidence likely to come before the Court at some point during the trial. CR(P)No.(SH)41/2012 Page 7 of 8
20. I have already found that when one reads the judgment under reference in its totality, there cannot be any escape from the conclusion that inspection can be done by a Judge under Order 18 Rule 18 of the CPC only to appreciate the evidence on record (emphasis supplied by me). Thus, I have found that the judgment relied on by the parties helps only the contention advanced by the learned counsel for the petitioner/plaintiff.
21. In view of what I have discussed hereinbefore and what have emerged there-from, I am of the clear opinion that inspection under Order 18 of Rule 18 of the CPC is permissible only when there is evidence on record and not otherwise. Since evidently and admittedly, no evidence is recorded in connection with T.S. No.23(H)2012, the Judge was not right in passing the order(s) under challenge for holding inspection of the suit land on 05.11.2011.
22. In the result, both the orders are found to be unsustainable in law since the Judge undertakes to exercise the power conferred on her under Order 18 Rule 18 of the CPC illegally and as such, those two orders are hereby set aside and quashed.
23. Consequently, this proceeding is dismissed of course without costs.
24. Return the LCR forthwith.
JUDGE Lam CR(P)No.(SH)41/2012 Page 8 of 8