Dismissed

Bhupinder Singh Thakur v. Sushant Thakur

Himachal Pradesh HC1 Dec 2021CR/53/2021

Case brief

AI extract

What is this about?

The High Court dismissed the civil revision petition. It held the Trial Court correctly rejected the applicant's application to summon witnesses under Order 16 Rule 1 CPC as it was filed abusively to delay proceedings after the party had exhausted opportunities to produce evidence.

What did the court decide?

The revision petition was dismissed. Parties directed to appear before the Trial Court on 20th December 2021.

Bhupinder Singh Thakur Vs Sushant… — Civil Procedure and Limitation | Himachal Pradesh HC (2021)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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ON THE 1^st DAY OF DECEMBER, 2021 BEFORE

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HON’BLE MR. JUSTICE AJAY MOHAN GOEL

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CIVIL REVISION No. 53 of 2021

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Between:

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SH. BHUPINDER SINGH THAKUR ALIA KAKU, S/O LATE SH. HET RAM THAKUR, R/O THAKUR NIWAS, NEAR INDIAN AGRICULTURE RESEARCH INSTITUTE TUTIKANDI, SHIMLA, HP.

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….PETITIONER.

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(BY MS. BHAVNA DUTTA, ADVOCATE)

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AND

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SH. SUSHANT THAKUR, S/O SH. OM PRAKASH, R/O SUSHANT BHAWAN NEAR TUNNEL SANJAULI, SHIMLA-6, H.P.

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….RESPONDENT.

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(MR. RAKESH MANTA, ADVOCATE, FOR THE RESPONDENT )

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Whether approved for reporting ?¹

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This petition coming on for orders this day, the Court passed the following:

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O R D E R

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By way of this petition filed under Section 115 of the Code of Civil Procedure, the petitioner has challenged order dated 02.09.2021, passed by the Court of learned Civil Judge, Court No.7, Shimla, in a miscellaneous application filed by the present petitioner under Order 16 Rule 1 read with Section 151 of the Code of Civil Procedure in Civil Suit No. 8/2010 of 16/2013, (RBT119-1 of 17/13) titled as Sushant Thakur vs. Bhupinder Singh,

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vide which, the said application stands rejected by the learned Trial Court.

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The contentions of the learned counsel for the petitioner is that the order passed by the learned Court below is not sustainable in the eyes of law as learned Court has erred in not appreciating that certain witnesses who stood duly served and did not thereafter appear before the Court for the purpose of deposition, were not summoned by the Court by resorting to the provision of Order 16 Rule 12 of the Code of Civil Procedure, which has resulted in great prejudice to the petitioner. Accordingly, a prayer has been made for setting aside the impugned order and for issuing a direction to the learned Trial Court to summon the witnesses on behalf of the defendant in terms of the prayer made in the application.

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The petition is resisted by the respondent inter -a lia on the ground that there is no infirmity in the order passed by the learned Trial Court as the filing of the application was nothing but abuse of the process of law. According to the learned counsel for the respondent, after the plaintiff closed his evidence as far back in the month of May, 2018, despite more than reasonable opportunities having been granted to the defendant, he failed to lead his evidence and the filing of the application was just a tactic to delay the adjudication of the suit. He has argued that learned Trial Court was very indulgent and lenient towards the defendant as far as exceeding to his requests of again and again seeking time

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to lead evidence is concerned, yet defendant failed to lead the evidence and the dismissal of the application in this background of the application filed under Order 16 Rule 1 of the Code of Civil Procedure by the learned Trial Court calls for no interference.

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I have heard learned counsel for the parties and have also gone through the impugned order as well as the documents appended with the petition. 5. At the very threshold, this Court would like to make an observation that in exercise of powers conferred upon it under Section 151 of the Code of Civil Procedure, this Court interference with the orders passed by the learned Court below, in case a Court either exercised powers not vested in it or it fails to exercise powers vested in it or it exercised powers so vested in it with material irregularity. Here the allegation is not that the order has been passed by the learned Trial Court either by exercising the powers not conferred upon it or by not exercising the powers conferred upon it. Thus, the impugned order has to be seen on the touch stone of as to whether the learned Court below has exercised the powers vested in it with material irregularity or not.

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Record demonstrates that after the evidence of the plaintiff was closed, the case was ordered to be listed on 06.07.2018, for recording the statements of defendant witnesses. On the said date no witness on behalf of the defendant was present and even steps in this regard were not taken by the defendant. The Court ordered that the case to be listed for the said

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purpose on 29.08.2018. It appears that the matter was not listed in the interregnum and the case was listed on 10.10.2018, on which date the case was ordered to be listed for recording the statement of DWs for 04.12.2018. On 04.12.2018 also record demonstrates that as no steps were taken for producing the witnesses, the statement of none of the defendant witnesses was recorded. The defendant was again given an opportunity and the case was ordered to be listed on 07.03.2019. It appears that thereafter steps were taken by the defendant for the service of the witnesses. There is on record an order passed by the Trial Court dated 29.05.2019 which reads as under:-

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“DW Harinder Gupta not present today despite duly served. Let he be served through notice under Order 16 Rule 12 of the Code of Civil Procedure for 28.06.2019. Other DWs be also served for the date fixed .”

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The order which was passed by the learned Trial Court on 28.06.2019, demonstrates that for the said date summons issued to the DWs were received back un-served for want of correct address and again the case was ordered to be listed for recording the statement of defendant witnesses for 29.07.2019 on filing of correct address and process fee within seven days. Incidently, again on 29.07.2019, the story is repeated. No defendant witnesses present because correct address of the witnesses are not filed. Last opportunity to do the needful is given to the defendant for 13.09.2019. On the said date one witness is produced by the defendant who is examined and as a matter of

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indulgence on the asking of the defendant one more opportunity was granted to produce the defendant witnesses on self responsibility on 7.11.2019. On 07.11.2019, no witnesses were produced by the defendant but an application was filed under Order 16 Rule 1 of the Code of Civil Procedure, dismissal of which has led to be filing of this revision petition.

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The facts which stand narrated hereinabove demonstrate the callous attitude with which the defendant has taken the case proceedings as far as producing his witnesses are concerned. This Court concurs with the submission made by learned counsel for the respondent/plaintiff that learned Trial Court was liberal with the defendant as far as granting opportunities to lead his evidence is concerned, yet defendant failed to do so.

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Order 16 of the Civil Procedure Code deals with summoning and attendance of the witnesses. Order 16 Rule 1 (3) thereof provides that the Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witnesses, 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. The provision as is contained in Sub-Rule (1) is to the effect that 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

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they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Thus, the provisions of the Order are self speaking that the list as is contemplated under Order 16 Rule 1 has to be furnished by the party not later than 15 days after the date on which the issues are settled. The application under Order 16 Rule 1 in the present case was filed by the defendant on a day which was fixed by the learned Trial Court as a date fixed for recording the statement of DWs on self responsibility by way of last opportunity. Meaning thereby that this was not a stage as is contemplated by Sub Rule 1 of Rule 16. This Court has already quoted hereinabove the provisions of Sub Rule (3) of Order 16 Rule 1, vide which the Court can permit a party to summon witnesses other than those whose names appear in the first list but this is subject to the condition that party shows sufficient cause for the omission to mention the name of such witnesses in the said list. A perusal of the application which was filed by the present petitioner under Order 16 Rule 1, of the Code of Civil Procedure demonstrate that this pre-condition which is contemplated in Sub Rule (3) of Order 16 Rule 1, was not fulfilled as there was no sufficient cause given by the petitioner therein for the purpose of filing the application. In fact all that this Court can observe is that filing of the application was just to further delay the matter as the date on which the application was filed was the one on which the case was listed by way of last opportunity by the learned Trial Court for

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recording the statement of defendant witnesses on self responsibility.

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In this background, as this Court is convinced that filing of the application under Order 16 Rule 1 of the Code of Civil Procedure was nothing but an afterthought and an abuse of the process of law, the dismissal of the same by the learned Court below calls for no interference by this Court and accordingly this petition being devoid of any merit is dismissed.

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At this stage this Court would like to make one observation. One witness which the defendant intended to examine i.e. Haminder Gupta, despite service did not appear before the Court and order dated 29.05.2019, demonstrates that notice under Order 16 Rule 12, of the Code of Civil Procedure was issued by the Court to this witness. It is observed that the nonappearance of this witness after service should not be viewed lightly by the Court and procedure as is envisaged in Order 16 Rule 12, be taken to its logical conclusion by the learned Trial Court. Parties are directed to appear before the learned Trial Court on 20^th December, 2021.

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(Ajay Mohan Goel) Judge

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December 01, 2021 (vinod)

Bhupinder Singh Thakur v. Sushant Thakur

Case brief

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Bhupinder Singh Thakur v. Sushant Thakur

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