Allowed

Dhanalakshmi v. Malliga.N

Madras HC7 Feb 2014CRP/2786/2013

Case brief

AI extract

What is this about?

In a civil revision, the High Court set aside the trial court's order dismissing an application to summon witnesses. The Court held the dismissal violated principles of substantial justice under Order 16 CPC and allowed the revision petition.

What did the court decide?

The impugned order in I.A.No. 25 of 2013 is set aside. Civil Revision Petition allowed on payment of Rs. 1,000/- cost. Petitioner directed to follow principles of sub-rule 4 of Order 16 Rule 1.

Dhanalakshmi Vs Malliga.N — Civil Procedure and Limitation | Madras HC (2014)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED: 07.02.2014

¶4

CORAM:

¶5

THE HONOURABLE MR.JUSTICE T.MATHIVANAN

¶6

C.R.P.(PD).No.2786 of 2013 And

¶7

M.P.No. 1 of 2013

¶8

Dhanalakshmi

¶9

: Petitioner/Petitioner/Defendant

¶10

Vs.

¶11

Malliga, N. : Respondent/Respondent/Plaintiff

¶12

PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India to set aside the order passed by the learned III Additional District Munsif, at Pondicherry and made in I.A.No. 25 of 2013 in O.S.No. 81 of 2006 on 20.03.2013.

¶13

¶14

For Petitioner : Mr.B.Baskaran

¶15

For Respondent : Mr.R.Subramanian

¶16

O R D E R

¶17

The fair and decreetal order, dated 20.03.2013 and made in I.A.No. 25 of 2013 are under challenge in this Memorandum of Civil Revision.

¶18

¶19

2. The revision petitioner is the defendant in the suit in O.S.No. 81 of 2006; whereas the respondent is the plaintiff. It appears from the records that the respondent has filed the suit in O.S.No. 81 of 2006 as against the revision petitioner for permanent injunction. The revision petitioner has also contested the suit by filing her written statement.

¶20

3. After the completion of the recording of plaintiff's side evidence, the suit stood posted for recording of evidence on the part of the revision petitioner /defendant. One K.Kandasamy, Sub Inspector of Land Survey was examined as DW-5. During the course of his examination, the revision petitioner / defendant had marked Ex. B-11 through DW-5 Sub Inspector of Land Survey (retired). In his chief examination, he had admitted the document Ex. B-11, but he had denied his signature in his cross examination and deposed that Ex. B-11 was created for the purpose of the suit.

¶21

4. In order to substantiate his case, the revision petitioner / defendant desired to examine the witnesses, who have signed in the said document and therefore, he has taken out an application under Order 16 Rule 1 read with Section 151 of the Code of Civil Procedure to condone

¶22

¶23

the delay in filing the list of witnesses and also to permit him to take out summons to the witnesses specified in the petition. This petition was contested by the respondent/plaintiff and after hearing both sides, the learned trial Judge has dismissed the said petition on the ground that the revision petitioner had sought for two reliefs in the single petition and that it is abuse of process of law.

¶24

5. While dismissing the application, the learned trial Judge has also observed that the petitioner had already filed a similar application and it was also allowed and that on behalf of the petitioner, more than 5 witnesses were examined. He has also observed that the petitioner / defendant's side evidence was commenced on 31.10.2011, but till date it had not yet been completed and after making the above observation, the learned trial Judge has proceeded to dismiss the application saying that the petitioner has been prolonged the proceedings without showing sufficient cause. Being aggrieved by the impugned order, the defendant has approached this Court with this Memorandum of Civil Revision.

¶25

6. Mr.B.Baskaran, learned counsel appearing for the petitioner while advancing his argument has demonstrated after producing a copy of

¶26

¶27

the Exhibit B-11 and in this connection, he would submit that at the first instance, when DW-5 had admitted the document under Ex. B11 in his chief examination saying that it was signed by him, but when he was cross examined by the learned counsel appearing for the plaintiff in the court below, he had stated that the signature found in the document appeared to be like that of his signature and that the said document was created for the purpose of the suit.

¶28

7. In this connection, he would submit that in order to prove the document under Ex. B-11 is a valid document, the revision petitioner is under the necessity to examine the other persons, who have signed in the document.

¶29

8. On the other hand, the learned counsel Mr.R.Subramanian, appearing for the respondent has vigorously resisted the revision petition saying that the petitioner had not come out with adequate reasons for the purpose of condoning the delay in filing the list of witness. He has also argued that the witness DW-5 had appeared before the trial Court and offered his chief examination and during the course of his chief examination, the revision petitioner's counsel had surprisingly exhibited

¶30

¶31

the document (Ex. B-11) and questioned about his signature which was found in the document, for which, DW5 had clearly deposed that the signature found in Ex. B-11 seemed to be his signature. He has also added that during the course of his cross examination, DW-5 had clearly stated after perusing the document that Ex. B-11 was a forged one and that the signature was found to be tampered and therefore, he has urged that the revision petition might be dismissed as it was devoid of any merits.

¶32

9. This Court has perused the averments of the grounds of revision as well as the other materials available on record.

¶33

10 . Order 16 Rule 1 speaks about list of witnesses and summons to witnesses. Sub Rule 1 contemplates 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 they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court.

¶34

¶35

11. Sub Rule 2 envisages that a party desirous of obtaining any

¶36

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. Sub Rule 3 says that 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.

¶37

12. Sub Rule 4 envisages that subject to the provisions of subrule (2), summons referred to in his 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)).

¶38

13. It is to be noted that by amending Act 104 of 1976, the revised Rule 1 was substituted which made it compulsory to file a list of witnesses. The Amending Act of 1999 has substituted certain words in sub-rule (4) of Rule 1 to Order 16 and inserted the same in sub-rule (1) of rule 2. By amending Act 46 of 1999 the words ' Court in this behalf

¶39

¶40

within five days of presenting the list of witnesses under sub-rule (1)' have been substituted for the words 'Court in this behalf' in sub-rule (4) of Rule 1. The Amending Act of 2002 has not made any changes in this Order. The Amending Act of 1999 came in effect from 1 July 2002. It shall not apply to or affect any suit pending immediately before the commencement of the amending provisions and every such suit shall be tried as if the amending provision had not come into force. The effect of this amendment in sub-rule (4) is that summons for witnesses may now be obtained within five days of presenting the list of witnesses. Before the amendment of 1999 no such time limit had been laid down. This amendment to sub-rule (4) has not retrospective effect in view of Section 32(2) ® of Act 46 of 1999 which lays down that the amended rule 1 and 2 shall not affect any application made for summoning witnesses and time granted to a party to deposit amount for summoning witnesses before the enforcement of the amendment.

¶41

14 . It may also be relevant to note here that before the Amendment of 1999 came into effect there was no time-limit, as to the obtaining of summons referred to in this rule, by the parties on an application to the Court. It simply said that the application for obtaining

¶42

¶43

summons may be made to the Court or to such officer as may be appointed by the court in this behalf.

¶44

15. The amended sub-rule (4) of rule 1 of Order 16 prescribes the time limit for summoning of witnesses under sub-rule (1). Once a party files an application for summoning of witness, summons may be obtained under this rule within ' five' days of presenting the list of witnesses under sub-rule (1). In the opinion of the authors, this amended provision is a time saving step as it seeks to mandate that the application for summons to witnesses has to be presented within five days of presenting the list of witnesses under sub-rule (1).

¶45

16. The object of Sub Rule (2) to Rule 1 of Order 16 is that 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. The object of disclosing such a purpose is to enable the Court to decide as to whether the examination of such witnesses is of material benefit to decide the dispute. A duty is therefore cast on the Court to consider whether the purpose of citing a party as a witness is to speak of any material fact.

¶46

¶47

17. Sub Rule (2) to Rule (1) of Order 16 is in consonance with this principle and is enacted to prevent vexatious applications made to harass witnesses or unnecessarily prolong the trial by summoning irrelevant witnesses. The growing concept of substantial justice is a laudable feature of our judicial system. If that be so, then, in every case when an application is made in terms of Order 16 Rule 1, the Court has to apply its mind and restrict the number of witness to an extent which could cater to the requirement of the case. The approach of the Court should be to neither defeat the ends of justice nor cause undue delay in litigation. The court should not leave the number to the whims and fancies of the parties producing the witnesses. Therefore, as envisaged in Yashpal Sawhney v. Gandotra Traders reported in AIR 1995 J & K 32, the following guidelines are given to be followed by the Courts:-

¶48

(i)nature of litigation;

¶49

(ii)number of issues required to be proved;

¶50

(iii)nature of the issues;

¶51

(iv)the fact as to on whom the onus has been laid; and

¶52

(v)the specified purpose for which a particular witness is required to be produced.

¶53

¶54

18. However, Sub Rule (3) reduces the rigour of sub-r(1) and grants discretion to the court to call a witness by summoning him through the Court.

¶55

19 . On coming to the instant case on hand, this Court is of considered view that the order of the learned trial Judge appears to be not in consonance with the principles enumerated as above and therefore, the impugned order is liable to be set aside.

¶56

20. Accordingly, the order passed by the learned III Additional District Munsif, Pondicherry and made in I.A.No. 25 of 2013 in O.S.No. 81 of 2006, dated 20.03.2013 is set aside and this Civil Revision Petition is allowed on payment of cost of Rs.1,000/- to be paid by the revision petitioner to the respondent directly before the trial Court and in order to obtain summons, the revision petitioner / defendant is directed to follow the principles enunciated under sub rule 4 to Rule 1 of Order 16. Consequently, connected Miscellaneous Petition is closed.

¶57

07.02.2014

¶58

Index: Yes/No Internet: Yes/No vsg To The III Additional District Munsif Pondicherry

T.MATHIVANAN, J.

vsg

C.R.P.(PD).No.2786 of 2013 And M.P.No. 1 of 2013

¶63

07.02.2013

¶64

Dhanalakshmi v. Malliga.N

Case brief

What is this about?

What did the court decide?

Dhanalakshmi v. Malliga.N

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

Coram

Case details

Similar cases

Chandra, Vs Venkatesh

V.Chalapathy Vs Munusamy

S.Renuka Vs K.Gangarathinam

Raj Kumar Vs Mrs.Mary Saroja

J.Reka Vs M.Natarajan

Dhanam Vs Sundaram Finance Ltd.