Disposed

Ashok Kumar and Anr. v. Parasnath Singh and 6 Ors.

Bombay HC7 Jul 2021WP/170/2021

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa, by a common order, set aside orders rejecting applications for summoning bank and firm witnesses in an old suit due to inadvertence in filing a witness list. The Court directed issuance of summons conditional on payment of 50,000/- in costs to respondents.

What did the court decide?

Set aside impugned orders and issue summons to witnesses, conditional upon deposit of 50,000/- in costs; otherwise petitions dismissed with costs.

Ashok Kumar and Anr. Vs Parasnath Singh and… — Contract and Commercial Disputes | Bombay HC (2021)

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1 901 WP 170 of 2021

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.170 OF 2021

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WITH
WRIT PETITION NO.171 OF 2021

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1. Mr. Ashok Kumar,
Son of Yadunandan Prasad,
65 years of age, Ro H. No.204/P, G-1,
Subham Apartment, Vasudha Colony,
Alto St. Cruz, Bambolim - Goa.

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2. Mr. Sunil Kumar,
Son of late Jagdev Mahto,
58 years of age, r/o H. 257/2B,
Kumar Sadan, Raghuvir Smriti Nagar,
Merces, Ilhas-Goa.

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... Petitioners.

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Versus

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1. Mr. Parasnath Singh,
Son of Mr. Yadunandan Prasad,
Major of age,
r/o Danteshywar Residency,
Kirlawaddo, Chimbel, Tiswadi,
Post Office Ribandar Goa.

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2. Mrs. Manoramadevi Parasnath Singh,
Wife of Parasnath Singh, Major of age,
r/o Danteshywar Residency,
Kirlawaddo, Chimbel, Tiswadi,
Post Office Ribandar Goa.

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3. Charles Barromeu Menezes,
alias Charles Valdimir Menezes,
(Since deceased) through legal heirs,

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2 901 WP 170 of 2021

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3(a) Mr. Ambrose Menezes,
Major of age,
r/o Deira, Dubai
3(b) Mrs. Jean Menezes,
Major of age,
r/o Deira, Dubai
3(c) Mr. Brian E. Menezes,
Major of age,
r/o Coral Springs,
Florida - 33065, USA.
3(d) Mrs. Jeanette Lobelle Menezes,
Major of age,
r/o Coral Springs,
Florida - 33065, USA.
3(e) Mr. Desmond Menezes,
Major of age,
r/o Deira Dubai.
3(f) Mrs. Fran Loveleen Menezes,
Major of age,
r/o Peddem, Mapusa,
Bardez - Goa.
4. Mrs. Maria Angelica Maximiana Menezes
alias Maxy Menezes,
major of age,
Peddem, Mapusa,
Bardez - Goa.
5. The Secretary,
Village Panchayat of Tivim,
Having office at Tivim,
Bardez - Goa.

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3 901 WP 170 of 2021

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6. The Registrar of Firms
Having office at Panaji Goa
Junta House, Panaji.

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7. State of Goa,
Represented by Chief Secretary,
Government of Goa,
Secretariat, Porvorim Goa.

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... Respondents.

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Mr. Chirag Angle, Advocate for the Petitioners.

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Mr. Dinesh Eknath Naik, Advocate for Respondents No.1 and 2.

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Mr. Anthony D'Silva, Advocate for L.Rs. of Respondents No.3 and 4.

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Mr. Geetesh Ramesh Shetye, Additional Government Advocate for
Respondent No.7 in Writ Petition No.170/2021

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Mr. Shivdatt P. Munj, Additional Government Advocate for Respondent
No.7 in Writ Petition No.171/2021.

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Coram:M.S. SONAK, J.
Date: 7th July 2021

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ORAL JUDGMENT:

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Heard Mr. Angle the learned Counsel for the Petitioners, Mr.
Dinesh Naik for Respondents No. 1 and 2, Mr. Silva for the Legal
Representatives of Respondents No.3 and 4, and Mr. Munj, the learned
Additional Government Advocate appearing for Respondent No.7 in
Writ Petition No.171/2021.

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2. Since common issues are involved in both these petitions, they are disposed of by a common Judgment and Order.

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4 901 WP 170 of 2021

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3. Rule in both these petitions. The rule is made returnable forthwith at the request and with the consent of the learned Counsel appearing on behalf of the contesting parties.

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4. The challenge in both these petitions is to the orders by which the learned Trial Judge has dismissed the Petitioners' applications for summoning the bank manager of the Punjab National Bank and Registrar of Firms as witnesses to depose in the matter.

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5.The record bears out that in this case, the Petitioner failed to file
any list of witnesses, much less, name these particular witnesses in the
said list. After the trial commenced, these applications were taken out
seeking the aid of the Court to summon these witnesses to depose in the
matter.

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6.The circumstance that no list of witnesses is filed or for that
matter, no names of the witnesses that are sought to be examined at the
trial are set out therein, cannot be a circumstance to deprive a party, the
opportunity for examination of such witnesses in all cases. However, in
such a situation, the Court is not obliged to aid such a party in securing
the presence of such witnesses. This means that the party cannot, as a
matter of right, insist that summons be issued to secure the presence of
such witnesses.

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7.But that also does not mean that the Court is powerless to issue a
summons or extend aid to a party, despite such party explaining the
circumstances in which no list of witnesses came to be filed or the names
of the witnesses who are now proposed to be examined remained to be set

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5 901 WP 170 of 2021

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out in such list of witnesses, if filed. A party can also explain why, now, it
has become necessary to examine such witnesses and how the interest of
justice warrant the examination of such witnesses. The Court is expected
to take into account all such considerations holistically and only
thereafter decide whether summons can be issued for examination of the
witnesses that the party now proposes to examine. In all such cases,
however, the Court can neither forget the prejudice to the opposite
parties nor the impact of such requests on the speedy conclusion of the
trial in the proceedings. Therefore, even if such requests are to be
entertained and summons is to be issued, the party will have to be called
upon to pay suitable costs so that the prejudice to the opposite parties as
well as the prejudice inherent in delaying such proceedings is at least
minimized.

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8.Mr. Angle, the learned Counsel for the Petitioners points out that
in the present case, the list of witnesses remained to be filed out of
inadvertence. He submits that there was no malafide intention on the
part of the Plaintiffs and if the suit is delayed, it is the Petitioners-
Plaintiffs, who will suffer the most. He submits that the Petitioners
expected the Registrar of Firms, who has been impleaded as a Defendant
to appear and contest the matter. Since this has not happened, it is
necessary to examine the Registrar of Firms as a witness to establish, inter
alia, the existence of the partnership firm and other issues which have
been raised in the proceedings.

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9.Mr. Angle points out that the examination of the bank manager is
also necessary because it is the case of the Petitioners that the funds for

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6 901 WP 170 of 2021

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the purchase of the suit property were expended through the accounts of the partnership firm. He submits that examination of these witnesses is quite important and interest of justice required the Court to lend its assistance by issuing summons to these witnesses. He submits that since these are official witnesses, they are unlikely to come at the bidding of the Petitioners. He submits that the Petitioners, are willing to pay costs up to the extent of 5,000/- to compensate the opposite parties for the ₹ prejudice, if any, that they might suffer. But Mr. Angle submits that there is no question of any prejudice to the Defendants and therefore, no costs or in any case costs beyond 5,000/- may be imposed. ₹

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10.Mr. Dinesh Naik, Mr. Silva, and Mr. Munj defend the impugned
orders based on the reasons reflected therein. They point out that despite
the clear provisions of Order XVI Rule 1 of the Civil Procedure Code,
neither was any list of witnesses filed nor was any indication given before
the commencement of trial that summons would be necessary to some of
the witnesses.

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11.Mr. Naik and Mr. Silva submit that if the request of the Petitioner
is to be granted, the Defendants whom they represent will suffer severe
prejudice. They point out that the suit is pending since 2012 and there is
some unnecessary cloud being created upon the right, title, and interest of
the Defendants whom they represent, on account of the pendency of
these proceedings. Accordingly, they submit that both these petitions may
be dismissed.

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12.As noted earlier, it is not as if the Trial Court has no jurisdiction, in
a fit case, to issue summons to witnesses merely because no list of
witnesses was filed or because the names of the witnesses now proposed to
be examined were not listed therein. There is discretion vested in the
Court and no doubt, such discretion has to be exercised for valid
considerations and on holistic examination of the circumstances.

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13.In this case, the learned Trial Judge has quite correctly observed
that this is an old suit and there is a special drive to dispose of old suits.
The Trial Judge has quite correctly observed that at least in old suits, the
parties, should be more diligent and not attempt to delay the disposal of
such suits. Though, this is certainly a valid consideration, based solely
upon this consideration, the learned Trial Judge, should not have ignored
all other considerations urged on behalf of the Petitioners and dismissed
the Petitioners' application seeking summons to the said witnesses.

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14.There is some merit in the submissions of Mr. Angle that all the
circumstances that were presented on behalf of the Plaintiffs were not
considered by the learned Trial Judge. No doubt, this is a case of lapse on
the part of the Petitioners. However, the lapse is not of such magnitude as
to deny the Petitioners assistance to examine witnesses, that according to
the Petitioners are quite important for their case. The lapse indeed
appears to be on account of inadvertence, rather than any malafide or the
adoption of dilatory tactics. Since these are official witnesses, likely, they
will not come to depose at the private bidding of the Petitioners. These
aspects have not been considered by the learned Trial Judge and therefore,
interference is warranted with the impugned orders. Besides, in this case,

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8 901 WP 170 of 2021

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the Petitioners have demonstrated the prejudice that might occasion their
case, if, no assistance is granted to examine the witnesses that they
propose to examine at this stage. Even the Petitioners, have been
prosecuting this matter since 2012, and all these circumstances, warrant
the grant of some assistance to the Petitioners.

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15.However, the grant of any assistance to the Petitioners or the
extension of any indulgence in their favor, certainly, cannot be at the cost
of delaying the proceedings before the Court and more importantly,
prejudicing the Defendants, who are also required to attend to this
litigation for last over nine years. Therefore, the contesting Defendants at
least, are required to be suitably compensated in this matter. Some costs
are also due because the order which is proposed to be made will delay
the disposal of the suit even though there is now a special drive
undertaken to dispose of such old suits.

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16. Having regard to all the aforesaid circumstances, the impugned orders can be set aside and summons can be issued to the two witnesses, provided, the Petitioners, pay costs of 25,000/- to the Defendants No.1 ₹ and 2 and further costs of 25,000/- to the legal representatives of ₹ Defendant No.3 and Defendant No.4 in the suit. If such costs are paid or deposited by the Petitioners before the Trial Court, within four weeks from today, only then, the impugned orders shall stand set aside and the Trial Court will then issue summons to the witnesses, in terms of the prayers made by the Petitioners.

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17. However, if the costs are not paid or deposited within four weeks from today, then these petitions shall be deemed to have been dismissed without any further reference to this Court. Such dismissal shall be with costs of 10,000/- to be equally divided between Defendants No.1 and 2 ₹ on one hand and the legal representatives of Defendant No.3 and Defendant No.4 on the other hand.

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18.The Trial Court, is directed to dispose of the suit expeditiously.
The learned Counsel for the parties assure this Court that they will
cooperate with the learned Trial Judge in the matter of expeditious
disposal of this old suit. The Trial Court should endeavor to dispose of
the suit within eight months from today.

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19. The learned Counsel for the parties to place on the record of the learned Trial Judge an authenticated copy of this order.

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20.All concerned to act based on an authenticated copy of this order.

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 M.S. SONAK, J.

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jfd/-

Ashok Kumar and Anr. v. Parasnath Singh and 6 Ors.

Case brief

What is this about?

What did the court decide?

Ashok Kumar and Anr. v. Parasnath Singh and 6 Ors.

Case brief

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What did the court decide?

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