JUDGMENT Krishna Murari, J.
1. The short question which arises for determination is whether oral statement of witness which is not signed by Presiding Officer before whom it was recorded, can be relied upon and read in evidence.
2. The facts are that on death of recorded tenure holder an objection under Section 12 of U.P. Consolidation of Holdings Act (for short the Act) was filed by the petitioner claiming mutation of his name on the basis of a will dated 21.9.1977. Respondent No. 3 contested the claim of the petitioner denying the execution of the will and claimed mutation of her name over the property in dispute claiming herself to be wife of the deceased.
3. The Consolidation Officer vide order dated 31.12.1980 allowed the claim of the petitioner. Appeal filed by respondent No. 3 was allowed by settlement Officer consolidation on the ground that oral evidence relied upon did not bear the signature of the Presiding Officer and remanded the case back. The revision was also dismissed by Deputy Director of Consolidation.
4. On an examination of the record of the Consolidation Officer, the Settlement Officer consolidation found that statement of witnesses adduced on behalf of the petitioner did not bear the signature of Consolidation Officer. The Settlement Officer Consolidation was of the view that oral statement of witnesses cannot be read in evidence unless the same are signed by the presiding Officer. He further found that signatures of the Consolidation Officer on the order sheet are also not legible. The Settlement Officer Consolidation set aside the order of Consolidation Officer and remanded the case back to be decided afresh after recording the statement of witnesses in his presence. The Deputy director of Consolidation also took the same view and dismissed the revision.
5. The proceedings before the Consolidation Officer were under Section 12 of the Act. Sub Section-2 of Section 12 provides that provisions of Section 7 to 11 of the Act shall mutatis and mutandis apply to the hearing and decision on any matter raised under Sub Section 1 as if it were a matter raised under the aforesaid sections. Rule 26 of the Rules framed under the Act provides that the procedure to be followed while disposing of the case under Section 9-A and 9-B and 9-C of the Act. By virtue of Sub-Section (2) of Section 12 the provision of Section 7 to 11 having been mutatis and mutandis applied, the procedure prescribed for disposal of objection under Section 9-A, 9-B and 9-C shall be applicable to the objection filed under Section 12 of the Act. Relevant Rule -26 (2) reads as under;
"On the date fixed under Sub Rule 2 of Rule -25 A or any subsequent date fixed for the purpose, the Consolidation Officer shall hear the parties, frame issue on the point of dispute, take evidence both oral and documentary and decide the objection".
6. Thus the Consolidation Officer is required to hear the parties, frame issue, take evidence both oral and documentary before proceeding to decide the objection. There is no obligation cast upon the Consolidation Officer to put his signature on the deposition of witnesses recorded before him. From a reading of Rule-26 (2) it is clear that only obligation cast upon the Consolidation Officer is to take evidence both oral and documentary tendered by the parties which obviously means that oral evidence shall be recorded in presence and personal direction or superintendence of Consolidation Officer.
7. In the present case there is no averment that oral statement of witnesses was not recorded in the presence of Consolidation Officer or under his direction and superintendence. The only ground on which the order of Consolidation Officer has been set aside and the case has been remanded back for re-trial after recording afresh evidence is that the (deposition of witnesses recorded by Consolidation Officer has not been signed by him and as such no reliance can be placed on the same.
8. Since the procedure prescribed for deciding the objection does not cast any obligation upon the Consolidation Officer to put his signature on the oral testimony of the witnesses, the absence of his signature will not vitiate the proceedings.
9. Even under the provision of order 18 Rule 4 and 5 of the Code of Civil Procedure which provides for recording of evidence, there is no obligation cast upon the Presiding Officer to put his signature on the statement of witnesses recorded in the Court in his presence and under his personal direction and superintendence.
10. From aforesaid discussions, it is clear that Settlement Officer Consolidation and Deputy Director of Consolidation both committed illegality in setting aside the judgment of the Consolidation Officer and wrongly remanded the matter back for retrial after recording the evidence afresh.
11. In the end a feeble attempt was made by learned counsel for the respondent by raising an argument that writ petition against remand order is not maintainable. The argument has been advanced only to be rejected. It can not be said that as a rule writ petition against remand order is not maintainable. Generally, the court refuses to interfere or issue a writ of certiorari against a remand order for there is no final adjudication. If the court normally does not interfere in the remand order it does not mean that there is any lack of power in the court to interfere in such an order or the petition challenging the remand order is not maintainable. The court can interfere if it finds the circumstances to be extraordinary or the interference necessary in the interest of justice. In the present case, the view taken by Settlement Officer Consolidation and Deputy Director of Consolidation is illegal and as such the remand made on the basis of an illegal and erroneous view cannot be sustained and deserved to be interfered and quashed by this court.
12. In the result the writ petition succeeds and is allowed. The impugned orderidated 12.2.1982, 5.9.1981 passed by Deputy Director of Consolidation and Settlement Officer Consolidation respectively, are hereby quashed. The matter is remanded back to the Settlement Officer Consolidation for decision afresh on merits in accordance with law after notice and opportunity of hearing to all concerned. Since the matter is very old and has remained pending for long, Settlement Officer Consolidation is further directed to hear and decide the appeal within a period of six months from the date of production of certified copy of this order before him. However, in the facts and circumstances of the case there shall be no order as to costs.