P.S.Pattar, J. - (1.) THIS is an appeal filed by Siri Chand Defendant against the order dated 13th August, 1973 of the Additional District Judge, Gurgaon, whereby he accepted the appeal of Ram Chander Plaintiff and set aside the judgment and decree of the trial Court and remanded the suit to it for fresh decision after recording evidence of the parties in accordance with law.
(2.) THE facts of this case are that Bhura Lal, adopted son of Mst. Gainda widow of Nathi Mal was the owner of the land in suit fully described in para No. 1 of the plaint and he died on December 10, 1967. On October 20, 1967, he executed a will bequeathing all his property in favour of Ram Chander Plaintiff. After the death of Bhura Lal, the land was mutated by the revenue authorities in favour of Siri Chand, Defendant, who claimed himself to be the adopted son of Bhura Lal. The Plaintiff, therefore, filed suit for possession of this land on the allegations that he is entitled to inherit this land on the basis of will executed by Bhura Lal in his favour and that the deceased did not adopt Siri Chand as his son. The factum, and the validity of the alleged adoption was challenged. The Defendant denied the allegations made in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court: (1) Whether the deceased made a valid will in favour of the Plaintiff? If so, to what effect? (2) Whether the Plaintiff is a direct descendant of the common ancestor of Bhura Lal deceased, if so, to what effect? (3) Whether the Defendant was adopted by Bhura Lal, if so, to what effect? (4) Whether the suit is within limitation? (5) Whether the parties are governed by Custom in matters of succession and adoption and alienation, if so, what that custom is? (6) Whether the suit property is ancestral property of the deceased qua the Defendant? (7) Whether the suit property is ancestral and co -parcenary qua the deceased and the Defendant? (8) Whether the suit is properly valued for purposes of Court -fee? (9) Relief. The trial Court decided issues Nos. 4, 5 and 8 in favour of the Plaintiff and decided issues Nos. 1, 2, 3, 6 and 7 against the Plaintiff. As a result, the suit of the Plaintiff was dismissed. Feeling dissatisfied, Ram Chander Plaintiff filed appeal against this decree in the Court of the District Judge. On behalf of the Appellant, it was contended before the Additional District Judge, who heard the appeal, that the trial Court did not record the evidence in Hindi, which was the Court language in the State of Haryana and that there was no legal evidence on the file and the decision of the trial Court, therefore, cannot be sustained. This contention prevailed with the Additional District Judge, who accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case to it for fresh decision after recording evidence in accordance with the law. Feeling dissatisfied, Siri Chand Defendant filed this appeal alleging that the decision of the lower appellate Court is wrong and incorrect and it may be set aside and the case may be remanded to the lower appellate Court for deciding the appeal of Ram Chander Plaintiff on merits. It is undisputed that the trial Court did not record the evidence of the witnesses of the parties in Hindi, which is the Court language in the State of Haryana and their evidence was recorded in English only. According to the lower appellate Court, the provisions of Order 18, Rules 5, 8 and 9 of the Code of Civil Procedure were contravened by the trial Court. I may set out these provisions for facility of reference: Order 18, Rule 5. - -In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing, in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and when completed, shall be read over in the presence of the Judge and of the witnesses, and the Judge shall, if necessary, correct the same, and shall sign it. Order 18, Rule 8. - -Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record. Order 18, Rule 9. - -Where English is not the language of the Court, but all the parties to the suit, who appear in person, and the pleaders of such as appear by pleaders, do not object to have such evidence as is given in English taken down in English, the Judge may so take it down Rule 9 of Order 18, Code of Civil Procedure has no application to the present case because it is undisputed that none of the witnesses of the parties gave evidence in English. Rule 8 of Order 18, Code of Civil Procedure envisages that if the evidence is taken down in writing by some person other than the Judge though In the presence and under the; personal direction and superintendence of the Judge, then the Judge also should make or cause to be made, a memorandum as provided by this rule. In case, the Judge is unable to make a memorandum as required by Rule 8, he shall cause the reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court, as required by Rule 14 of Order 18. A perusal of the record of this case shows that the Subordinate Judge dictated the evidence of all the 12 witnesses of the Plaintiff to a typist in English. The Subordinate Judge himself recorded in Hindi the statements of Jaffar Hussain D.W. 1 and Ishwari Parshad, petition writer, D.W. 2. The Subordinate Judge himself recorded in English the statements of Jai Narain D.W. 3, Om Parkash D.W. 4, Sher Lal D.W. 5, Sangram Singh D.W. 6 and Kanshi Nath, D.W. 7 and also the statements of Sat Pal D.W. 10, Kishan Murari Lal D.W. 11, Ram Kishan Gupta D.W. 12, Ram Nath D.W. 13, Chandgi Ram D.W. 14, Bal Ram D.W. 15 and Mool Chand D.W. 18. However, the statements of Mool Chand D.W. 8, Nathi Mal D.W. 9, Murari Lal D.W. 16 and Debi Sahai D.W. 17 were dictated in English by the Subordinate Judge to a typist. The statement of Siri Chand Defendant as D.W. 19 was partly written in English by the Subordinate Judge and partly it was dictated in English to the typist. Therefore, it is clear that the evidence of the parties was not recorded by the trial Court in accordance with the provisions of Order 18, Rules, 5, 8 and 14. The evidence of all the witnesses of the parties excepting the statements of Jaffar Hussain D.W. 1 and Ishwari Parshad D.W. 2 was not recorded in Hindi, which is the official language of the Courts in Haryana. However, Order 18, Rule 6, Code of Civil Procedure lays down that when the evidence is taken down in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given. There is no documentary evidence on the file to show that the evidence of all the witnesses recorded in English was interpreted to them as required by this Rule 6. However,, at the end of the statements of each of these witnesses, the words 'R.O. & A.C.' i.e., read over and admitted correct are written. According to illustration (e) of Section 114 of the Indian Evidence Act, the Court may presume that all judicial and official acts have been regularly performed. There is no allegation on the file to show that the statements of the witnesses, whose evidence was recorded in English, were not interpreted to them. So, it can be presumed that the statements were interpreted to the witnesses after these were recorded.
(3.) MR . G.C. Mittal, the learned Counsel for the Appellant relied upon several decisions of the various High Courts and the Supreme Court to show that the non -recording of the evidence in the manner required by Order 18, Rules 5, 8 and 14, Code of Civil Procedure is not an illegality, but is a mere irregularity, which did not affect the merits of the case or the jurisdiction of the court and consequently the decree of the trial court could not be reversed.;