Partly allowed

Neeru Batra v. Jaswinder Paul Batra and 5 Ors.

Bombay HC26 Sept 2018APP/390/2018

Case brief

AI extract

What is this about?

This Letters Patent Appeal challenged a Single Judge's order rejecting a witness summons. The court held the appeal was maintainable as the order decided a material issue. It clarified that courts have inherent power under Order XVI CPC to summon witnesses not in the original list, even if they are foreigners or listed by the opposite party, subject to discretionary safeguards.

What did the court decide?

The impugned order dated 19th April 2018 is modified; the earlier Judge's Order is restored; the learned Single Judge is directed to decide the merits of the witness summons application in accordance

Neeru Batra Vs Jaswinder Paul Batra and 5 Ors. — Civil Procedure and Limitation | Bombay HC (2018)

appl276.doc

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

 APPEAL (L)NO.276 OF 2018

¶6

Ms Neeru Batra...Appellant

¶7

vs.

¶8

1 Jaswinder Paul Batra, USA
2 Ms Brinder Batra, U.S.A.
3 Ms Sunaina Batra, U.S.A.
4 Mr.Baljit Singh, U.S.A.
5 Kotak Mahindra Bank Ltd.
(erstwhile Vysya Bank)
6 Praveen Shetty, Mumbai ...Respondents

¶9

Mr.Vibhav Krishna and Mr.Tahir Pande i/b Shorath Pai
for the appellant

¶10

Mr.Kamal Khata a/w Aditya Manjrekar i/b Akshay Vani
for the respondent Nos.1 to 3.

¶11

Ms Neha M. Shah i/b Ms Bodhanwalla & Co. for the
respondent No.5.

¶12

ShubhashriShridharPathak Digitallysigned byShubhashriShridharPathakDate:2018.10.0911:57:47+0530

¶13

CORAM : A.S.OKA, &
 M.S.SONAK,JJ.
 DATE : SEPTEMBER 26, 2018

¶14

ORAL JUDGMENT: (PER A.S.OKA,J.)

¶15

1Heard the learned counsel appearing for the
appellant and the learned counsel for the respondent
Nos.1 to 3 as well as the learned counsel for the
respondent No.5. Other respondents are not necessary
parties for deciding the controversy which arises in
this Appeal. By the order dated 10th September 2018,
the parties were put to notice that the Appeal will
be taken up for final disposal at admission stage.

¶16

2By this Appeal, the appellant who is the first

¶17

2 appl276.doc

¶18

defendant has impugned the order dated 19th April
2018 passed by the learned Single Judge. The
respondent Nos.1 to 3 are the original plaintiffs.
For the sake of convenience, we are referring the
parties as plaintiffs and defendants. The impugned
order has been passed on Judge's Order taken by the
appellant-first defendant. The prayer in the
Judge's Order was to issue a direction to the
learned Prothonotary and Senior Master to issue
witness summons (a letter of request) to one Ms
Manjit Ananandani who is a resident of USA. There
is an affidavit in support filed by the first
defendant in support of the Judge's Order setting
out the reasons as to why it is necessary to issue a
witness summons/a letter of request to the said
witness. By the impugned order, the learned Single
Judge dismissed the Judge's Order. The reasons
recorded by the learned Single Judge for dismissing
the Judge's Order are mainly in paragraphs 3 to 5
which read thus:

¶19

“3The present Judge's order is by
Defendant No.1A, and in my view it is not
only thoroughly misconceived but a practice
of Advocates that has been deprecated time
and again, of one party calling as his own a
witness of the opposite party.

¶20

4The Judge's Order seeks the issue of a
letter of request to Manjit and for
directions for her cross-examination by

¶21

¶22

appl276.doc

¶23

video conferencing. Even if I was inclined
to pass an unguarded order for cross
examination by video-conferencing, which I
am not and never have been, for I believe
that sufficient safeguards and protocols
must be put in place to avoid future
controversies and a possible disruption of
the integrity of the trial, this concept
that just because one party has not led
evidence of a named witness, therefore it is
open to the opposite party to call that very
person is entirely incorrect and erroneous.
It is a practice that has been deprecated by
courts over and over again. If the
Plaintiffs listed Manjit as a witness and
then did not call her, it is always open to
the Defendant No.1A or any of the Defendants
to submit that the best evidence was not
led, was kept from the Court and that an
adverse inference must follow. This is,
however, no justification for calling the
witness of opposite party whose evidence
was not taken. This way lies only
complication. I have very little doubt that
the moment such an order is passed an
application will be made, also incorrectly
and without basis in law, that Manjit must
technically be declared hostile and,
therefore, permission must be granted to the
Defendant No.1A to cross-examine the very
witness to whom the Defendant No.1A herself

¶24

4 appl276.doc

¶25

sought to issue a letter of request. This
is also an incorrect practice.

¶26

5 In my view, this entire practice is untenable and misconceived.”

¶27

(underline supplied)

¶28

3In paragraph 2, the learned Single Judge noted
that during course of the cross examination of the
first plaintiff, he stated that he would be leading
evidence of the said witness who happens to be his
sister. The learned Judge also noted that the name
of the same witness appears in the list of witnesses
furnished by the plaintiffs but the plaintiffs did
not call her as a witness.

¶29

4The submission of the learned counsel for the
first defendant in support of the Appeal is based on
two decisions of the learned Single Judges of this
Court in the case of Ravalnath Builders Vs.
Sebastiano Escolastica Beatriz Nunes Mendosa1 and
Chandrabhan R. Singh Vs. Prabhakar R. Desai2.

¶30

5His submission is that after the 1976 amendment
to the Code of Civil Procedure,1908 (for short “the
said Code”), there is no bar in law even to a
party to the suit calling his adversary/opposite
party as a witness. He would, therefore, submit
that after 1976 amendment to the said Code, the law

¶31

1 2012 (2) Bom.Cases Reporter 403

¶32

2 2009 (2) Bom.C.R.915

¶33

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¶34

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laid down by the learned Single Judge of this Court
in the case of Pirgonda Hongonda vs. Vishwanath
Ganesh and others3 does not hold good. His
submission is that in any event, the law laid down
by the learned Single Judge in the case of Pirgonda
will not apply to a situation where a party to the
suit applies for issuing a witness summons to a
witness whose name is included in the witness list
of the opposite party but who has not been examined
by the opposite party. He submitted that by the
order dated 31st July 2017, the learned Single Judge
in the suit permitted the examination of a witness
by the first defendant through video conferencing.

¶36

6The learned counsel for the plaintiffs first
submitted that this Letters Patent Appeal is not
maintainable. He relied upon a decision of a
Division Bench of this Court in the case of
Sarvadaman Mansukhlal Doshi and others vs. Deepak
Mansukhlal Doshi and others4. He submitted that the
impugned order which refuses to issue a witness
summons to a witness is not a Judgment within a
meaning of clause 15 of the Letters Patent. The
learned counsel further submitted that the
provisions of Order XVI of the said Code regarding
issuing witness summons are not applicable to a
witness residing outside India as held by a learned
Single Judge of this Court in the case of
I.C.Corporation, A Partnership Firm vs. Daewoo

¶37

4 2007 (5) Bom.C.R.569

3 AIR 1956 Bom 251

appl276.doc

Corporation and others5. As far as the order dated
3rd July 2017 issued by the learned Single Judge is
concerned, the learned counsel for the plaintiffs
submitted as the said order is not an order within
the meaning of Letters Patent, the plaintiffs could
not challenge the same. He submitted that even
assuming that a witness summons or a letter of
request can be issued to the witness, the first
defendant is not entitled to the directions as
sought in the Judge's Order as a matter of right.
He has to make out a case for issuing a letter of
request or a witness summons to the witness and the
Court always retains a discretion to reject the
prayer for issue of a witness summons or a letter of
request. He submitted that the first defendant did
not take out proper proceedings making out a case
for issuing a letter of request or a witness summons
to the said witness. His submission is that even if
it is found that the view taken by the learned
Single Judge is not correct, ultimately the issue
whether a case is made out for granting a request
made by the first defendant will have to be left to
the discretion of the learned Single Judge. He also
pointed out that the learned Single Judge has
observed that the trial has been completed in the
sense that recording of oral evidence has been
completed.

¶42

7We have given careful consideration to the

¶43

5 1989 Mh.L.J 1136

¶44

appl276.doc

¶45

submissions. We have already quoted what is observed
by the learned Single Judge in paragraphs 3 to 5 of
the impugned order. We have perused the decisions
referred by the learned Single Judge in paragraph 4
of the Judgment. We find that none of the said
decisions deal with the controversy which arises in
this Appeal. The controversy is when a party to the
suit includes the name of a witness in his witness
list and does not examine him as a witness, whether
the rival party can summon the said witness as his
or her own witness. Perusal of the said decisions
show that the said controversy did not arise for
consideration in the said decision. In cases of
Pirgonda Vs. Vishwanath (supra) and Kishori Lal vs.
Chunni Lal6, the Court was considering the issue
whether Court has power to issue a witness summons
to opposite party to appear as a witness. In the
case of Kishori Lal (supra), the Privy Council
deprecated the practice of summoning a party to the
suit as a witness of the rival party. The learned
Single Judge followed the said view in the case of
Pirgonda Hongonda (supra). In the case of Suresh
Vs. Uttam7, the learned Single Judge of this Court
extensively referred to the decision in the case of
Kishorilal (supra). The learned Single Judge was
dealing with the case where the Trial Court directed
a summons to be issued to the defendant as a witness
of the plaintiffs. The learned Single Judge followed
the aforesaid decision of the Privy Council by

¶46

7 (2012) 5 Bom CR 495

6 31 All 116 (PC)

appl276.doc

proceeding to set aside the order and observed that
the Court can always draw an adverse inference. The
learned Single Judge in paragraphs 4 and 5 has
referred to the practice which has been deprecated
by the Privy Council. The said practice is of a
party to the suit applying for issue of a witness
summons to a rival party. In the case of Mahunt
Shatrugan Das vs.Bawa Sham Das8, the Privy Council
has followed its earlier decision in the case of
Kishorilal (supra). None of the decisions relied
upon deal with the controversy which arises in this
appeal.

¶51

8As far as the view taken by the Privy Council
in the case of Kishori Lal (supra) and Mahunt
Shatrugan Das (supra) and the learned Single Judges
of this Court in the case of Pirgonda Hongonda
(supra) and Suresh (supra) is concerned, the same
has been the same explained by the learned Single
Judge of this Court in the case of Ravalnath
Builders (supra) by holding that after considering
the provisions of the amended Code, there is no bar
for a party to call his opponent as a witness in the
suit. A similar view has been taken by a learned
Sinigle Judge of this Court in the case of Ramdas
Dhondibhau Pokharkar vs. State Bank of India and
another9. In any case, we are not concerned with the
said controversy. Suffice it to say that the view
taken in the aforesaid two decisions of the Privy
Council and the learned Single Judges of this Court

¶52

8 AIR 1938 PC 59

¶53

9 2003 (1) All M R 76

¶54

¶55

appl276.doc

¶56

will not apply to the factual controversy which
arises in this Appeal. In this case, we are not
dealing with the issue of the summoning a party to
the proceedings.

¶57

9At this stage, we may make useful reference to
Rule 1 of Order XVI which reads thus:

¶58

“1. List of witnesses and summons to
witnesses -

¶59

(1) On or before such date as the Court may
appoint, and not later than fifteen days
after the date on which the issues are
settled, the parties shall present in Court a
list of witnesses whom they propose to call
either to give evidence or produce documents
and obtain summonses to such persons for
their attendance in Court.

¶60

(2) A party desirous of obtaining any summons
for the attendance of any person shall file
in Court an application stating therein the
purpose for which the witness is proposed to
be summoned.

¶61

(3)The Court may, for reasons to be recorded,
permit a party to call, whether by summoning
through Court or otherwise, any witness,
other than those whose names appear in the
list referred to in sub-rule (1), if such
party shows sufficient cause for the omission
to mention the name of such witness in the
said list.

¶62

¶63

appl276.doc

¶64

(4) Subject to the provisions of sub-rule
(2), summonses referred to in this rule may
be obtained by the parties on an application
to the Court or to such officer as may be
appointed by the Court in this behalf within
five days of presenting the list of witnesses
under sub-rule (1).”

¶65

10Sub Rule (3) of Rule (1) of Order XVI confers
a discretion on the Court to permit a party to
call whether by summoning through Court or
otherwise, any witnesses other than those whose
names appear in the list of witnesses referred to
in sub-rule (1). Sub Rule (3) requires that the
party has to show sufficient cause for omission
to mention the name of such witnesses in the list
of witnesses furnished as per Sub Rule (1) of
Rule 1. Moreover, the Court is required to
record reasons. There is one more aspect. Sub
Rule (3) of Rule 1 uses the words “summoning
through Court or otherwise.”. It not only permits
to call a witness by issuing a witness summons
through Court, but it permits even other modes
such as issue of a letter of request without
recording reasons.

¶66

11In the context of the submissions made by the
learned counsel for the plaintiffs, what is
relevant is Rule 19 of Order XVI which reads
thus:

¶67

appl276.doc

¶68

¶69

“19. No witness to be ordered to attend in
person unless resident within certain
limits – No one shall be ordered to attend
in person to give evidence unless he
resides -

¶70

(a) within the local limits of the Court's
ordinary original jurisdiction, or

¶71

(b) without such limits but at a place less
than [one hundred] or (where there is
railway or steamer communication or other
established public conveyance for five-
sixths of the distance between the place
where he resides and the place where the
Court is situate) less than [five hundred
kilometers] distance from the Court house:

¶72

[Provided that where transport by air is
available between the two places mentioned
in this rule and the witness is paid the
fare by air, he may be ordered to attend in
person]

¶73

12 Considering Rule 19, if a witness sought to be examined resides outside India, it is possible to call the said witness by paying him air fare. Therefore, we do not agree with the proposition that Order XVI per se does not apply when a witness is residing abroad or that Court is powerless to procure presence of a witness residing abroad. Even assuming that a witness summons cannot be issued to a witness residing

¶74

¶75

appl276.doc

¶76

abroad, Sub Rule (3) of Rule (1) of Order XVI
does not prohibit a party from calling a
witness residing abroad, by issuing a letter of
request.

¶77

13Moreover, there is no specific prohibition
in the said Code for recording evidence of
witnesses through video conferencing. The
question, however, is of providing adequate
safeguards.

¶78

14As far as the discretion of the Court in
the matter of permitting examination of a
witness not included in the list of witnesses is
concerned, even after 2002 amendment to the said
Code, the discretion is retained as observed by
the Apex Court in paragraph 32 of its decision
in the case of Salem Advocate Bar Association
T.N. vs. Union of India10. Paragraph 32 of the
said decision reads thus:

¶79

“32Order 18 Rule 2(4) which was inserted
by Act 104 of 1976 has been omitted by Act
46 of 1999. Under the said rule, the court
could direct or permit any party, to
examine any party or any witness at any
stage. The effect of deletion is the
restoration of the status quo ante. This
means that law that was prevalent prior to

10 2005 (6) SCC 344

appl276.doc

the 1976 amendment, would govern. The
principles as noticed hereinbefore in
regard to deletion of Order 18 Rule 17(a)
would apply to the deletion of this
provision as well. Even prior to the
insertion of Order 18 Rule 2(4), such a
permission could be granted by the Court in
its discretion. The provision was inserted
in 1976 by way of caution. The omission of
Order 18 Rule 2(4) by the 1999 amendment
does not take away the court's inherent
power to call for any witness at any stage
either suo motu or on the prayer of a party
invoking the inherent powers of the court.”
(underline added)

¶84

15Hence, the Apex Court has categorically
held that notwithstanding amendments, the Court
has inherent power to call any witness at any
stage either suo motu or on the prayer of a
party.

¶85

16At this stage, we may also make a useful
reference to the decision of the learned Single
Judge in the case of Ramdas Dhondibhau
Pokharkar vs. State Bank of India and another,
wherein the decision of the learned Single
Judge of this Court in the case of Pirgonda
Hongonda (supra) was pressed into service. In
paragraph 8 of the said decision, the learned
Single Judge has observed thus:

¶86

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¶87

¶88

“8The most important provision of
law for the decision in the matter is
Rule 21 of Order XVI of the C.P.C.
which provides that “Where any party
to a suit is required to give evidence
or to produce a document, the
provisions as to witnesses shall apply
to him so far as they are applicable.”
In other words, the said rule clearly
indicates that a party to a suit can
seek assistance of the Court to
examine the opposite party in the same
suit as his witness and require such
opposite party to produce a document
or documents. Apparently, the said
rule wipes out the difference between
a party and witness in the matter of
giving evidence in a suit. For the
purpose of giving evidence, the
parties to the suit as well as the
witnesses in the suit stand on the
same footings. Accordingly, the
parties to the suit are exposed to all
the consequences and penalties those
may be faced by or imposed upon the
witnesses consequent to issuance of
order to give evidence or to produce
document and for disobeying the same,
apart from additional risk of judgment

¶89

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¶90

¶91

being passed against them in exercise
of power under Rule 20 of Order XVI of
the C.P.C.”

¶92

17In paragraph 9, the learned Single Judge
reiterated that the law does not prohibit
examination of the opposite party as a witness
in the suit. In fact, the observation in
paragraph 8 is that Rule 21 of Order XVI wipes
out the difference between the party and its
witness.

¶93

18In any event, we are concerned here with a
witness who is not a party. Therefore, even
assuming that the decisions of the Privy
Council and the decisions of this Court in the
case of Pirgonda (supra) and Suresh (supra)
continue to hold the field, the said decisions
do not deal with witnesses. Therefore, with
greatest respect to the learned Single Judge,
the proposition of law laid down by him in
paragraph 4 of the impugned order is not well
supported.

¶94

19The learned counsel for the plaintiffs
contended that the impugned order is not a
Judgment within the meaning of clause 15 of the
Letters Patent. The effect of the impugned
order is that the first defendant will be
prevented from examining the witness he wants.
Moreover, the impugned order lays down as a

¶95

¶96

appl276.doc

¶97

matter of law that in the factual controversy
which arises in this case, the first defendant
is not entitled to examine the witness whose
name was included in the list of the witnesses
submitted by the plaintiffs though the
plaintiffs have not chosen to examine the said
witness. According to us, the impugned order
finally decides an issue which will materially
and directly affects the decision in the suit.
Therefore, as held in paragraph 16 of the
decision of the Apex Court in the case of Shah
Babulal Khimji vs Jayaben D. Kania And
Another11, in the present case, the impugned
order will have to be held as a Judgment within
the meaning clause 15 of the Letters Patent.

¶98

20The learned counsel for the plaintiffs
submitted that even if Sub Rule (3) of Rule 1
of Order XVI is applied, there is no proper
application made by the first defendant.

¶99

21We find that there is a consistent practice
followed for years on the Original Side of this
Court wherein such applications for issue of
witness summons are made in the form of a
Judge's Order. A Judge's Order is required to
be supported by an affidavit in support of the
party taking out the same. In the affidavit in
support, the party applying always can make out
a case for exercise of discretion by the Court

11 (1981) 4 SCC 4

appl276.doc

in his/her favour. In the present case, there
is a detailed affidavit filed by the first
defendant in support of the Judge's Order.
However, the learned counsel for the plaintiffs
is right to the extent that there is no finding
in the impugned order whether the first
defendant has made out a case for the Court
exercising discretion in terms of the prayer
made in the Judge's Order. In fact, there was
no occasion for the learned Single Judge to go
into the issue of exercise of discretion in
view of proposition of law laid down by him.

¶104

22Though we do not agree with the proposition
of law laid down by the learned Single Judge,
the issue whether a case is made out by the
first defendant for grant of relief as prayed
for in the Judge's Order is a question which
will have to be left open to be decided by the
learned Single Judge. In the circumstances, the
Appeal must succeed in part.

¶105

23Hence, we pass the following order:

¶106

(I) For the reasons which are set out above,
the impugned order dated 19th April 2018 is
modified;

¶107

(II)The Judge's Order No.66 of 2017 is restored
to the file of the learned Single Judge;

¶108

(III)It will be open for the learned Single
Judge to pass appropriate order on the Judge's

¶109

18 appl276.doc

¶110

Order in accordance with law in the light of
what is held in this Judgment;
(IV)Appeal is partly allowed in above terms
with no order as to cost.

¶111

(M.S.SONAK,J.)(A.S.OKA,J.)

Neeru Batra v. Jaswinder Paul Batra and 5 Ors.

Case brief

What is this about?

What did the court decide?

Neeru Batra v. Jaswinder Paul Batra and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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