Uttarakhand High Court
Sunita Jain & Anr. ... vs The Commissioner on 15 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. (M/S) 2693 of 2021
Sunita Jain & Anr. ......Petitioners
-Versus-
The Commissioner, Garhwal Mandal & Ors.
.......Respondents
Present:
Mr. Jitendra Chaudhary and Mr. Nandan Arya, the learned
counsel for the petitioners.
Mr. Yogesh Pande, the learned Addl. C.S.C. and Mr. Devesh
Ghildiyal, the learned Standing Counsel for the State.
Sri S.K. Mishra, J.
Date of hearing and order
15.12.2021
1. Heard Mr. Jitendra Chaudhary, the learned counsel
for the petitioners and Mr. Yogesh Pande, the learned
Addl. C.S.C. for the State.
2. It is not expedient to issue notice to the opposite
party nos. 3 to 6.
3. In this writ petition, the petitioners prayed for a
direction to the Assistant Collector, 1st Class/ SDM,
Haridwar, to decide the proceedings of Partition Suit No.
76 of 2003, renumbered as New No. 37 of 2016, (Smt.
Suneeta Jain & another vs. Smt. Kamlesh & another)
and also direct a writ of certiorari quashing the order
passed by the learned Commissioner, Garhwal Mandal,
Camp at Dehradun, District Dehradun, calling for the
original records from the court of learned Assistant
Collector, 1st Class/SDM, Haridwar, which is in fact
putting a hold or stay of further proceedings of the suit
for partition.
4. The grievance of the petitioners is that in spite of
the fact that suit has been filed in the year 2003,
because of the delaying process adopted by the private
respondents the suit is as yet not been disposed of.
Though, in the meantime, there is preliminary decree
for partition has been passed but the same has been set
aside later under the provisions of Order 9 Rule 13 of
the Code of Civil Procedure, 1908. In the meantime,
some persons have filed an application for impleadment
which was rejected by the Assistant Collector, 1st Class/
SDM, Haridwar, against which they preferred revision to
the court of the learned Commissioner, Garhwal Mandal,
in revenue revision no. 2 of 2021 and revenue revision
no. 3 of 2021 where no stay order was passed and the
lower court records were called for.
5. Calling for records for consideration of a revisional
case of deciding appeals even when it is not necessary
to examine the records has created great bottlenecks
and hindrances in disposal of the original suit. Taking
this fact into consideration, the Hon'ble Supreme Court
in the case of Asian Resurfacing of Road Agency Pvt.
Ltd vs. CBI, (2018) 16 SCC 340, has held that it is not
necessary to call for the lower court records or trial
court records rather copies of the record should be
called for. It appears that though the order has been
passed in the year 2018, but, this order, passed by the
Hon'ble Supreme Court, has not percolated to all the
appellate courts or revisional courts in the State of
Uttarakhand and we find time and again the revisional
court calling for original court records.
6. Hence, the writ petition is disposed of directing the
Commissioner, Garhwal Mandal, Pauri, Camp Dehradun,
to forthwith return the trial court records to the court of
learned Assistant Collector, 1st Class/SDM, Haridwar,
after keeping xerox/scanned copy of the same for its
reference in the revision case. We further direct that all
the revenue courts, criminal courts and civil courts in
the State, having jurisdiction to decide the appeals or
revisions either under Civil Procedure Code or Criminal
Procedure Code or even under the revenue laws shall
not call for original records and whenever there is need
of perusal of the lower court's records, they shall call for
xerox or scanned copies of the records. As far as the
pending revision and appeals are concerned, in all civil,
criminal and revenue courts of the State, the original
records have been immediately returned to the trial
courts or courts of first instance after keeping xerox
copies thereof. This order appears to be passed in the
line of a PIL but this Court feels compel to pass the
order only to give effect to the order passed by the
Hon'ble Supreme Court in their aforesaid judgment. It is
further directed that on receipt of the record, the
Assistant Collector, 1st Class/SDM, Haridwar, shall
proceed with the partition suit and decide the same as
expeditiously as possible preferably within a period of
two months of receipt of the original record by its office.
7. Urgent certified copies of the judgment be
provided as per rules. A free copy of the order be
prepared and handed over to Mr. Yogesh Pande, the
learned Addl. C.S.C. for communication to all
concerned.
(S.K. Mishra)
Judge
PV
