It is for the Plaintiff to prove his case and Plaintiff cannot call upon the Court to order investigation by appointing expert under Order XXVI Rule 10-A

In a recent judgment, the Himachal Pradesh High Court, held that taking into consideration any dispute which does not require a local or scientific investigation, the Plaintiff cannot call upon the Court to order investigation by appointing revenue expert to prepare excerpt and report history of the suit land as per pedigree table so as to create evidence in favor of Plaintiff.

The said ruling was delivered in the matter of Rajinder Singh vs. Ran Singh and Ors., CMPMO No. 465 of 2017 decided on 18.07.2018.

Challenge:

The Plaintiff had challenged order dated 16.08.2017 of the Trial Court wherein his application under Order XXVI Rules 9 and 10-A was dismissed. In the said application, the Plaintiff had prayed for appointment of a revenue expert to prepare excerpt and to report the history of land in dispute as per the pedigree table. The Plaintiff had averred in his application that in the absence of the same, the Plaintiff was not in a position to prove his case. The Trial Court dismissed the Application of the Plaintiff stating the Plaintiff is to prove his case by leading his own evidence and in a matter like the present one where the pleadings and evidence had been complete, Plaintiff could not be given an opportunity to collect evidence. Aggrieved, Plaintiff filed the present petition.

Held:

The High Court held that under Order XXVI Rule 9 of the CPC, the court can order local investigation in a suit, in which the Court deems such investigation to be proper for the purpose of elucidating any matter in dispute. In case of Order XXVI Rule 10-A, if the court thinks it necessary or expedient, in the interest of justice, it can issue a commission to such person as it thinks fit for any scientific investigation where any question arising in a suit involves a scientific investigation which cannot be conveniently conducted by the Court itself. It was observed that it is apparent from the language of Order XXVI Rules 9 and 10-A that the Court has to be satisfied that local investigation or scientific investigation shall be necessary for the purpose of adjudication. The said Rules of Order XXVI are not a right conferred upon a party to call upon the Court to order an investigation. In the facts of the present matter, it was observed that onus is on the Plaintiff to prove his case. As it was not a case where either scientific or local investigation is necessary, the Hon’ble Court held that for the purpose of elucidating in the matter in dispute, the Court cannot be used as a tool to create evidence because it is for the parties to prove their case.

In the light of the above observations, the petition was dismissed.