A.N. Jindal, J. - (1.) THE petitioners have invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 11.4.2012 passed by the trial court refusing the request of the petitioner to examine expert to prove the ancestral nature of the property. The case was fixed for the plaintiffs evidence when they moved an application for preparation of the excerpt in order to establish that the property at once was ancestral and it devolved upon them from common male ancestor. As such, it was relevant to examine the Kanungo with the excerpt to prove nature of the property. In order to meet such controversy, the Punjab & Haryana High Court Rules and Order, Chapter IX, Vol. I, specifically provide for utilization of the services of the Special Kanungo or Patwari Muharrir. The relevant provisions from said Chapter IX are reproduced as under : - CHAPTER 9 Utilisation of the Services of the Special Kanungo or Patwari Muharrir For the purpose of making the information contained in the revenue records accessible to the litigating public and to the Courts; a Special Kanungo or Patwari Moharrir has been appointed in all the districts of Punjab, except Simla. The procedure to be followed in such cases is that the Court in which the suit is pending issues a summons to the Special Kanungo or Patwari Moharrir, who, after preparing his excerpt, goes to the Court on the date fixed, taking with him the revenue records from which the excerpt has been compiled. He is then placed in the witness box. Counsel thus have the opportunity of comparing the excerpt with the originals, and of examining him on any points they choose.
(2.) PARTIES who desire to summon the Special Kanungo or Patwari Muharrir as a witness with his records must be required to state succinctly and in writing the point on which information is required, and the application must be sent along with the summons to the Special Kanungo or Patwari Muharrir. The Courts must see that the application is in a readily intelligible form before they issue it, and the practice of sending for the Special Kanungo, or Patwari Moharrir to tell him what is required must be discontinued, though Courts may also issue written instructions, or supplement or correct the application. Court must be on guard against using the Kanungo or Patwari Muharrir for purposes for which he is not intended, e.g., he is not to be required to give opinions, he is not to be used as a local Commissioner, or to be asked to provide instances in support of or to refuse an alleged custom. Courts must also see that, if the special Kanungo or Patwari Muharrir is required, he is summoned for the first hearing after issues are framed, and not, as sometimes happens at present, at the end of the case. They must also never fail to ask him on oath whether the excerpt is in accordance with the revenue records. 4 The excerpt prepared by the Special Kanungo or Patwari Muharrir is not evidence unless proved and cannot be used as such. He cannot be allowed to go to outlying Courts because he cannot take the revenue records with him, and without them there would be no check over his excerpt. It is, however, very desirable that outlying Courts should be able to utilize the Special Kanungo or the Patwari Muharrir, and as the best practicable method of securing that object, Presiding Officers of outlying Courts may issue either interrogatories for the Special Kanungo or Patwari Muharrir on an open Commission to a senior official at headquarters ordinarily and, unless there is some special reason to the contrary, the Senior Subordinate Judge. This official, who will have other duties and is described in the instructions appended as the officer -in -charge, will then comply with the direction given, summon the Special Kanungo or Patwari Muharrir, record his statement on oath and make the return to the Court. In this connection attention is drawn to Order XXVI Rule 18 (1), of the Code of Civil Procedure. The issue of a Commission should not become a source of unnecessary delay, and the officer -in -charge should in the absence of very strong reasons proceed in the absence of parties if they do not appear. Parties should be informed that their appearance at headquarters is optional if interrogatories are issued. 5. The following instructions have been issued for the guidance of the Courts and of the Special Kanungo or Patwari Muharrir and it will be the immediate duty of the officer -in -charge to see that these instructions are followed : - Instructions regarding the utilization of the services of the special kanungo or Patwari Muharrir (i) Applications for the service of the Special Kanungo or Patwari Muharrir must be made to the Court and may not be made direct to the special Kanungo or Patwari Muharrir. (ii) Such applications must state clearly the point on which information is required, and if this condition is not fulfilled they will be liable to be returned for amendment. They may, however, be supplemented or corrected by the Court. (iii) Wherever an application is sent to the Special Kanungo or Patwari Muharrir, he must, at the same time, be summoned as a witness and the applicant must at once deposit into Court the fee for evidence which is Rs. 3/ - and excerpt fee of Rs. 6/ - for entries in one Jamabandi or Misl -i -Haquiat for the first 15 pages. Note - If the Special Kanungo or Patwari Muharrir is only required to produce a revenue record or if he is only summoned with the original revenue record in order to verify whether a copy is correct, an evidence fee of Rs. 3/ - only will suffice. This deposits shall be credited at once into the treasury under the head "XXI - Administration of Justice - General Fees. Fines and Forfeitures - other General Fees, fines and Forfeiture and particulars of the credit noted on the application and the summons issued to the special Kanungo or Patwari Moharrir. No summons shall be issued until this amount is paid by the party concerned and credited into the treasury. (iv) Courts to which applications are made must see that they are made promptly (within a short time to be fixed by the Court after the date on which issues are framed) so that the Special Kanungo, or Patwari Muharrir may be ready with his excerpt and to give evidence on the next date fixed. (v) Court must remember that unless proved the excerpt of the Special Kanungo or Patwari Muharrir is not evidence and must not be treated as such. The Special Kanungo or Patwari Muharrir must, when he goes to Court always bring with him the original records from which his excerpt has been compiled, so that he may be available for comparison. He must always be put on oath, and be asked to say whether the excerpt is a true copy of a portion of the original records. The excerpts must be a correct copy of such portions of the records as are relevant and not merely a summary or paraphrase. (vi) The Court should, as a rule, compare, with the original records some of the entries in the abstract and initial and date those thus compared. (vii) The fee of Rs. 6/ - for entries in one Jamabandi or Misl -i Civil Haquiat for the first 15 pages will, also cover the cost of search. This sum of Rs. 6/ - should be deposited by the applicant at the time of summoning the special Kanungo or Patwari Muharrir as a witness and the extra fee, if any, at the rate of Rs. 3/ - for additional entries in any Jamabandi or Misli -Haquiat for the next 15 pages, or a part thereof should be recovered at the hearing. (viii) A register in form "A" annexed is prescribed for the special Kanungo or Patwari Muharrir. (ix) A very simple form of register in form "B" is prescribed for Courts using the Special Kanungo or Patwari Muharrir. The main objects of it are to facilitate inspection and to provide, if necessary, means of checking that of the Special Kanungo or Patwari Muharrir and to verify the amounts credited into the treasury. Each entry in the Register shall be attested by the Presiding Officer of the Court, in the column provided for the purpose, in token that the amount has been credited to Government as required by rule (iii). (x) If the application is made to the Court, which is not situated at the district headquarters, the Court will forward the application to the officer -in -charge together with a certificate that the fee of Rs. 6/ - has been recovered and credited to Government as in rule (iii), and will either issue an open Commission to him or will send interrogatories. (xi) The officer -in -charge will then transmit application to the Special Kanungo or Patwari Muharrir together with the interrogatories, if any, and will call upon him to prepare the excerpt required and to attend to give evidence. When he attends, his evidence, whether in the form of answers to interrogatories or otherwise, must be recorded on oath. The officer -in -charge must see that the Special Kanungo or Patwari complies with rule (v) above, and his attention is particularly drawn to the provisions of Order XXVI, rule 18. The examination of the Special Kanungo or Patwari Muharrir must not be postponed for the absence of parties. The outlying court must inform parties that their presence at Sadar is unnecessary if interrogatories have been issued. (xii) When the evidence has been recorded, the officer -in -charge, will fix the excerpt fee and the application will be returned with the evidence and the report, if any, together with an intimation of the amount of the excerpt fee to the court to issue. Any additional excerpt fee payable will be recovered from the party concerned at the next hearing before the Special Kanungo's or Patwari Muharrir's evidence is admitted to the record and will be credited to the Government in the Treasury by the Court in the manner prescribed in rule (iii) above. (xiii) The officer -in -charge, and the Courts must understand that the Special Kanungo or Patwari Muharrir is to be used only for the purpose of obtaining information which is not readily available. Thus, he must not be asked to prepare copies of pedigree -tables or of histories of villages which can be obtained from the Copying Agency. Nor must he be required to search for instances in support of or against an alleged custom, or be used as a local commissioner. (xiv) The Special Kanungo or Patwari Muharrir should report at once to the officer -in -charge any case in which he considers that rule (xiii) is being infringed. (xv) It is the duty of the officer -in -charge, to control generally the work of the Special Kanungo or Patwari Muharrir and the use made of him by the Courts and to report any irregularities to the District Judge. (xvi) An inspection book in form C for recording notes on inspection of Courts will be maintained and kept in the office of the District Judge, but it may be used either by him or by the officer -in -charge. (xvii) The District Judge is expected to watch the system carefully and to record his inspection notes in this inspection book. 2. The application appears to have been filed keeping in view the provisions as recorded in Chapter 9 of the aforesaid rules. However, the court without examining the rules had passed the order. Some times the revenue experts are to examine the value of the property, the area received in exchange of certain khasra numbers area deducted as bachat land or so. Some resolutions passed also are made part of the excerpt which are not part if rights of the record are also discussed in order to determine the nature of the property. The court has not taken note of the said rules and aforesaid aspects of the case. On scrutiny of the order, it appears that the court has moved on some tips given during training but has not studied to the depth with the help of Rules as described above. 3 In the circumstances, this petition is accepted, impugned order is set aside and the trial court is directed to proceed in accordance with law. This petition is accepted without serving notice to the respondent with a view to impart complete justice to the parties and to save the huge expenses, which may be incurred by the respondent as also in order to avoid unnecessary delay in adjudication of the matter. Still, if dissatisfied, the respondent may move to this court for recalling this order. ;