Allowed

Roskin Ahmed v. Hari Sankar Sahu and Anr.

Gauhati HC5 Sept 2019CRP(I/O)/180/2019

Case brief

AI extract

What is this about?

In a revision petition challenging a dismissal of an application under Order XVI Rule 6 CPC, the Hon'ble Gauhati High Court held that strict adherence to the timeline of Order XVI Rule 1 does not apply. The Court remanded the matter to determine the necessity of the document without dismissing it solely on the grounds of delay.

What did the court decide?

The revision petition is allowed and the matter is remanded to the Civil Judge to examine the necessity of the document.

Roskin Ahmed Vs Hari Sankar Sahu and Anr. — Execution and Attachment | Gauhati HC (2019)

¶1

Page No.# 1/7

¶2

GAHC010130682019

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : CRP(I/O) 180/2019

¶5

1:ROSKIN AHMED S/O- SAHABUDDIN AHMED, R/O- H.NO. 5, GANDHIBASTI, P.S. CHANDMARI, GHY-3, DIST- KAMRUP (M), ASSAM

¶6

VERSUS

¶7

1:HARI SANKAR SAHU AND ANR. S/O- LT JAIPAL SAHU, R/O- H.NO. 14, RAM KRISHNA PATH, DHUPALIA, JYOTIKUCHI, GHY, P.S. FATASIL AMBARI, FIDT- KAMRUP (M), ASSAM, PIN781040

¶8

2:NIRMALA GUPTA W/O- HARI SINGH SAHU R/O- H.NO. 14 RAM KRISHNA PATH DHUPALIA JYOTIKUCHI GHY P.S. FATASIL AMBARI FIDT- KAMRUP (M) ASSAM PIN- 78104

¶9

Advocate for the Petitioner : MD S I AHMED

¶10

Advocate for the Respondent : MR. R P SINGH

¶11

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

¶12

JUDGMENT

¶13

Date : 05-09-2019

¶14

Page No.# 2/7

¶15

Heard Mr. A. Dhar, learned counsel for the petitioner. Also heard Mr. R.P. Singh, learned counsel for the respondents.

¶16

TS No.344/2016 was filed by the plaintiff petitioner seeking a decree for specific performance of the contract in respect of a No Objection Certificate (NOC) bearing No. KRM(M) 4/2012/42783 dated 07.03.2016 issued by the Office of the Deputy Commissioner, Kamrup(M) Guwahati.

¶17

The said NOC pertains to the sale of an apartment described in Schedule-b to the plaint. Further a decree directing the defendant to register the apartment in the name of the plaintiff and also permanent injunction restraining the defendant from selling the apartment to any other person is also being sought apart from other reliefs.

¶18

In course of the proceeding the plaintiff petitioner filed a petition under Order XVI Rule 6 read with Section 151 CPC seeking for an order to call for the NOC issued by the Office of the Deputy Commissioner, Kamrup(M) Guwahati by stating that it was required for a proper adjudication of the dispute between the parties and for a fair disposal of the matter at hand.

¶19

In the petition, it was also stated by the plaintiff petitioner that he was represented by a different counsel who had not taken the required steps for calling of the NOC and when the matter was examined by the present set of counsel, the said inadvertence was noticed and accordingly the petition under Order XVI Rule 6 read with Section 151 CPC was filed.

¶20

The respondent defendant raised an objection to the petition under Order XVI Rule 6 by taking the stand that the plaintiff cannot be allowed to call for the document at this belated stage and the purpose behind for calling it was to harass the defendant. By the order dated 17.05.2019 the learned Civil Judge No.2, Kamrup(M) rejected the petition of the plaintiff petitioner by taking a view that the document concerned ought to have been called much earlier and the lapses committed by one set of counsel cannot be a ground to call for the document at a belated stage to fill up the lacuna in the suit. The order dated 17.05.2019 rejecting the petition of the plaintiff petitioner field under Order XVI Rule 6 has been assailed in this petition.

¶21

Page No.# 3/7

¶22

Mr. A. Dhar, learned counsel for the plaintiff petitioner urges upon that an interpretation of the provisions of Order XVI Rule 6 is required as upto which stage in a suit the said provision can be invoked. We have taken note of that without going into the question as to whether the document called for is a vital document for the purpose of arriving at an appropriate adjudication in the dispute at hand, the learned Civil Judge had dismissed the petition under Order XVI Rule 6 on the ground that the said petition would not be maintainable because of the delay.

¶23

Mr. R.P. Singh, learned counsel for the defendant respondent per contra submits that Order XVI Rule 6 of the CPC would have to be read together with the provisions of Order XVI Rule 1 and the requirement of Order XVI Rule 1 would have to be satisfied also in respect of a petition that may be filed under Order XVI Rule 6.

¶24

In view of the rival submissions being made the core question for determination in this revision would be as to up to what stage in the proceeding the provisions of Order XVI Rule 6 can be invoked and secondly whether the provisions thereof would have to be read together with Order XVI Rule 1 so as to arrive at a conclusion that the stage at which the provisions of Order XVI Rule 1 can be invoked would also be applicable while appreciating a petition filed under Order XVI Rule 6.

¶25

For an appropriate examination of the question raised we would have to read the provisions of Order XVI Rule 6 as well as Order XVI Rule 6 which are as follows:-

¶26

“Order XVI Rule 1

¶27

List of witnesses and summons to witness----(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 to produce documents and obtain summonses to such persons for their attendance in Court.

¶28

(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.

¶29

(3) The Court may, for reasons to be recorded, permit a party to call, whether by

¶30

Page No.# 4/7

¶31

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.

¶32

(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)].

¶33

“Order XVI Rule 6

¶34

Summons to produce document----- Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.”

¶35

On a plain reading we find that Order XVI pertains to the stage of the proceeding which immediately follows the stage under Order XIV and Order XV where Order XIV pertains to settlement of issues and Order XV pertains to disposal of the suit at the first hearing itself.

¶36

Accordingly, we are to understand that order XVI per se pertains to the period immediately after framing of the issues between the parties. A reading of Order XVI Rule 1 clearly depicts that within a period of not later than 15 days upon the issues being settled, the parties to the proceeding shall present to the Court a list of witnesses whom they propose to call either to give evidences or to produce documents and obtain summons to such persons for their attendance in Court. The provisions of Order XVI Rule 1 clearly refers to the stage immediately upon the issues being framed and requires the parties to present to the Court the list of witnesses whom they propose to call either to give evidences or to produce documents, meaning thereby that all such persons whom the respective parties may desire to present as witness are required to be presented to the Court at that stage itself.

¶37

Order XVI Rule 3 is an exception to Order XVI Rule 1 to the extent that if either of the parties are of the view that any witness other than those witnesses whose names were presented under Order XVI Rule 1 are also required to be called, such other witness may be

¶38

Page No.# 5/7

¶39

called subject to the condition that the party on whose behest such witness is called shows sufficient cause for omitting to mention the name of the witness in the said list provided under Order XVI Rule 1 and the Court if satisfied by recording the reason may permit the party to call for such witnesses. Apparently the stage at which the provisions of Order XVI Rule 3 can be invoked would definitely have to be at a stage which would be subsequent to the stage of requiring the presentation of the list of witnesses under Order XVI Rule 1. But again when we closely look into the provisions or Order XVI Rule 1 and Order XVI Rule 3 we take note of that the provisions are for presenting a list of witnesses either at the stage immediately upon settlement of the issues or at a stage subsequent thereto by showing sufficient cause but what remains is that the said provisions pertain to the list of witnesses which may either be for the purpose of giving evidences or for the purpose of producing documents.

¶40

Now when we look into the provisions of Order XVI Rule 6 we find that under the said provision any person may be summoned to produce a document without being summoned to give evidence and the person so summoned shall be deemed to have complied with the summons if he produces the document required to be produced either by personally attending the Court or by causing it to be produced.

¶41

The noticeable difference between Order XVI Rule 1 and that of Order XVI Rule 6 is that Order XVI Rule 1 pertains to calling of witnesses either to give evidences or to produce documents whereas Order XVI Rule 6 pertains to summoning of any person to produce a document which may be in his possession but not for the purpose of giving evidence.

¶42

Due to the apparent difference in the purport of the two provisions, where Order XVI Rule 1 is for the purpose of summoning of witnesses either to give evidences or to produce documents and Order XVI Rule 6 being for summoning of any person to produce any document without being summoned to give evidence as a witness, we are of the view that the two provisions are distinguishable from each other.

¶43

As because of the difference in the two provisions, we are of the view that the requirement of Order XVI Rule 1 that the list of witnesses to be summoned for giving evidences or producing documents has to be done at the stage immediately after framing of

¶44

Page No.# 6/7

¶45

the issues itself or at a later stage by providing sufficient causes to the satisfaction of the Court, would not be applicable in respect of a summon being made to any person to produce a document under Order XVI Rule 6.

¶46

Another relevant aspect would be that Order XVI Rule 1 pertains to a list of witnesses that has to be provided to the Court either at the stage immediately after framing of the issues as provided under Sub Rule 1 or at a later stage after showing sufficient cause as provided under Sub-Rule 3, both of Order XVI Rule 1, whereas, Order XVI Rule 6 is not related to a summon being issued to any of the witnesses so listed and on the other hand, it pertains to a summon being issued to any person other than the witnesses so listed.

¶47

From the said aspect also, the requirement of Order XVI Rule 1 that it has to be done at the stage immediately subsequent to the framing of the issues would also be not applicable as such for the purpose of invoking the powers under Order XVI Rule 6.

¶48

But having said so, we also cannot be oblivious to the aspect that Order XVI Rule 6 cannot be invoked with impunity without there being any sufficient cause for it to be called. The existence of sufficient cause in our view would have to be looked from the point of view whether document so called would be a vital document to arrive at an appropriate adjudication in the dispute at hand or such document can be considered to be not so relevant.

¶49

As a document called under Order XVI Rule 6 can be called only upon a proper examination of the materials on record so as to take a call as to its requirement and relevance for arriving at an appropriate adjudication, we are of the view that it cannot be the position of law that such document cannot be called at a stage other than the stage immediately subsequent to the stage of settlement of issues. The provisions of Order XVI Rule 6 is a mere provision enabling the parties to present their materials to arrive at an appropriate adjudication in the dispute at hand rather than to restrict the parties from invoking it only at the stage immediately after the settlement of issues.

¶50

In such view of the matter, we remand the matter back to the learned Civil Judge, No.2, Kamrup(M) Guwahati to examine the petition of the plaintiff petitioner made under Order 16 Rule 6 read with Section 151 CPC and pass appropriate order as to the necessity of

¶51

Page No.# 7/7

¶52

the document being called for the purpose of a proper and appropriate adjudication of the dispute at hand and in doing so also take into consideration as to whether intention of the plaintiff petitioner by filing such petition is for abusing the process of the Court or for arriving at a proper adjudication in the matter. Accordingly, we interfere with the order dated 17.05.2019 and remand the matter back to the learned Civil Judge No.2, Kamrup(M) Guwahati for a proper adjudication as indicated above.

¶53

The adjudication on the petition under Order XVI Rule 6 be done without any delay so that the process of deciding the TS No.344/2016 is not delayed any further.

¶54

The revision petition stands allowed as indicated above. Interim order, if any passed earlier stands vacated.

¶55

JUDGE

¶56

Comparing Assistant

Roskin Ahmed v. Hari Sankar Sahu and Anr.

Case brief

What is this about?

What did the court decide?

Roskin Ahmed v. Hari Sankar Sahu and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Subala Barman and Anr. Vs Rajendra Baishya and 5 Ors.

Manjuwara Begum Vs Saifuddin Ahmed

Aruna Gogoi Vs Bhabani Phukan, Advocate

M/S. Adharshilla and Anr. Vs Arun Ch. Choudhury and Anr.

Smt. Nirupama Saikia Vs Smt. Tapashi Sarkar and 24 Ors.

Smt. Nirupama Saikia Vs Smt. Tapashi Sarkar and 24 Ors.