Dismissed¶112

Ashok Sharma v. Ram Adhar Sharma

Supreme Court11 Feb 20092009 INSC 151 · [2009] 2 S.C.R. 92009 INSC 151

Case brief

AI extract

What is this about?

Order XVI Rules 1 and 1-A CPC; production of documents through a witness; witness brought without summons; leave of the Court; document taken on record; plaintiff a member of cooperative group housing society lacking possession of completion records; President of Society as PW-3; suit for possession of flat; Delhi High Court revision; Mange Ram v. Brij Mohan AIR 1983 SC 925; Vidhyadhar v. Manikrao (1999) 3 SCC 573; civil appeal dismissed.

What did the court decide?

None to the appellant; the appeal was dismissed with no order as to costs, leaving undisturbed the High Court's direction taking the document on record. ¶112

Ashok Sharma versus Ram Adhar Sharma — Supreme Court (2009) — LawSathi Research

What the court decided

AI extract

Outcome

None to the appellant; the appeal was dismissed with no order as to costs, leaving undisturbed the High Court's direction taking the document on record.

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Issue for consideration

Whether, under Order XVI Rules 1 and 1-A of the Code of Civil Procedure, 1908, a document in the possession of a summoned witness (the President of the Housing Society) — not filed by the plaintiff with the plaint or at the framing of issues — could be permitted to be taken on record through that witness, and whether the High Court rightly reversed the trial court's refusal.

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Court's answer

The High Court was justified in permitting the document to be taken on record at the instance of the witness PW-3.

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Ratio / Principle

Order XVI Rules 1 and 1-A of the Code of Civil Procedure, if read together, clearly indicate that it is open to a party to summon a witness to the Court or even, without applying for summons, to bring a witness to give evidence or to produce documents.

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Key takeaways

Rule 1-A of Order XVI of the Code was substituted by the Legislature to empower a party to bring any witness without obtaining summons, subject to the permission of the Court.ratio¶95
A document brought by such a witness can be taken on record, and it is not necessary that the plaintiff must have filed the copies of that document on record earlier.ratio¶99

Detailed headnote1 paragraphs

Civil Appeal dismissed (no costs). The appellant challenged the High Court of Delhi's order dated 11.01.2008 in Civil Miscellaneous (Main) 978 of 2006, reversing the trial court's refusal to let PW-3, President of the UNA Cooperative Group Housing Society, place on record documents proving the date of completion of construction of the suit flat. Held: the High Court was justified. Order XVI Rules 1 and 1-A CPC, read together, show that a party may summon a witness to give evidence or produce documents, or bring such a witness without summons with the Court's leave; Rule 1-A was substituted precisely to empower a party to produce a witness without summons. A document brought by such a witness can be taken on record even though the plaintiff never filed its copies earlier — the plaintiff, a mere member of the Society, could not have possessed the completion record, which lay only with the Society. Relied on: Mange Ram v. Brij Mohan & Ors., AIR 1983 SC 925; Vidhyadhar v. Manikrao & Anr., (1999) 3 SCC 573.

[2009] 2 S.C.R. 9

ASHOK SHARMA

RAM ADHAR SHARMA Ci-vii Appeal No. 883 Of 2009

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FEBRUARY 11, 2009

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[TARUN CHATTERJEE AND V.5. SIRPURKAR, JJ.]

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Code of Civil Procedure, 1908 ;

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;

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..-']

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Or.16, rr. 1 and 1 A - Suit for possession of flat located in Housing Society- On application of plaintiff, trial court allowed c summoning of PW3, President of the Society - PW3 sought permission to file document to prove date of completion of construction of the flat- Trial court declined permission - High Court reversed the order and permitted the document to be taken on record at the instance of PW3 - Justification of - D Held: Justified - Plaintiff wa.s simply a member of the Hausing Society and could not be in possession of the concerned document - The document was in possession of the Society, whose President i.e. PW3 camf3 forward as a witness to give evidence and to produce the document -Document brought E by PW3 could be taken on record.

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Responctent filed suit for possession of flat located in a Cooperative Group Housing Society. Issues were framed by the trial Court and both the parties were directed F to file list of witnesses/documents. On application of the Respondent, the trial court allowed summoning of PW3, President of the Society. After the examination of PW3 was closed, he sought permission to file certain document to prove the date of completion of construction of the flat. G The trial court declined permission on the ground that a witness could not be allowed to produce documents under Or, XVI r.1, CPC and since the document in question was not produced by the respondent either along· with

SUPREME COURT REPORTS

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[2009] 2 S.C.R.

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A the plaint or at the time Qf framing of issues, at this stage it could not be taken on record. High Court reversed the order of the trial court and permitted document to be taken on record at the instance of PW-3. Hence the present appeal.

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Dismissing the appeal, the Court

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HELD: The High Court was justified in permitting the document to be taken on record at the instance of PW-3. Or.XVI, rr. 1 and 1-A CPC, if read together, clearly indicate c that it is open to a party to summon a witness to the Court or even may, without applying for summons, bring a witness to give evidence or tO produce documents. Such document brought by the witness can be taken on record and it is not necessary that the plaintiff must have filed on 0^{recordthecopiesof thesaiddocument earlier. Inthe} present case, the question of filing a copy of the said document by the plaintiff could not arise in view of the fact that the document could not be In possession of the plaintiffrespondent. Respondent was simply a member of the Society, therefore, the record of completion of the conE struction of the flat i.e. the suit premises could only be proved by the respondent by production of documents which was only in possession with the Society, whose President came forward to give evidence and to produce the documents. [Paras 10, 13] [ 13-D, E ; 14-G, H]

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Mange Ram v. Brij Mohan & Ors. AIR (1983) SC 925 and Vid/?ygdhar v. Manikrao & Anr. (1999) 3 SCC 573 - relied on.

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Case Law Reference

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AIR (1983) SC 925 relied on Para 13 (1999) 3 sec 573 relied on Para 14

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 883 H of 2009

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ASH.OK SHARMA V RAM ADHAR SHARMA

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From the Judgement and Order dated 11.01.2008 passed by the High Court of Delhi, at New Delhi in Civil Miscellaneous (Main) 978 of 2006

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Manish Sharma, C.L. Sahu for the Appellant.

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Rajesh Mahindru, Sa rad Kumar Singhania for the Respon· B dent.

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The Judgement of the Court was delivered by

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TARUN CHATTERJEE, J.

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,..

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Leave granted.

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In the year 1995, the respondent Shri Ram Adhar Sharma let out his flat bearing No.11·C, Una Enclave, Mayur Vihar, Phase-I, Delhi-110091 (hereinafter referred to as the 'suit premises') to the appellant at a rental of Rs.3000/- per month, D inclusive of electricity bill and maintenance charges of the UNA Cooperative Society (in short 'the Society') .

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Now a suit has been filed by the respondent in the Court of the District Judge, Delhi for a decree for possession and also for a decree of Rs.1,01,880/- with interest accrued thereon and for other reliefs.

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On or about 27th of November, 2004, iss~es were framed by the trial Court and both the parties were directed to file list of witnesses/documents within 15 days from the aforesaid date. The parties went to trial and the respondent brought Sh.Pawan Kumar Vasudeva, the President of the UNA Cooperative Group Housing Society, within which the suit premises is located, who deposed as PW-3 and made the following statement in his examination :-

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"/ am the President of UNA Cooperative Group Housing^G Society. I have seen the documefli already exhibit as Ex.PW/113. I identify my signature on this document. I have produced the documents, the construction of society."

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SUPREME COURT REPORTS

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[2009] 2 S.C.R

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A 5.-After closure of examination and cross-examination-, the trial court closed his examination, but the witness Pawan Kumar Vasudeva-PW-3 sought permission of the court to file certain documents which was not allowed by the trial court on the ground that a witness could not be allowed to produce documents un8 der Order XVI Rule 1 of the Code of Civil Procedure (in short 'the Code') as the term "production", as mentioned in Order XVI Rule 1 of the Code shall mean that the witness can be summoned to bring the record to prove the documents placed on record by the parties to the suit and since the document in quesC tion was not produced by the respondent either along with the plaint or at the time of framing of issues, such document at that stage could not be taken on record.

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Feeling aggrieved by th~ aforesaid refusal to accept 0^{the document, asn_otedhereinabove, the respondentfi.leda} revisional application before the High Court of Delhi and by the impugned order; the High Court had allowed production of the document and directed that the said document be taken on record. Before the High Court, a plea for rejection of the aforeE saiq_ prayer of the respondent was raised that a witness under Order XVI Rule 1 read with Rule 1-A of the Code cannot produce documents as it envisages that a witness can either adduce evidence or produce document in Court. As noted herein earlier, the High Court 'allowed the said document to be taken F on record by allowing the revision setting aside the order of the trial Court.

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Feeling aggrieved and dissatisfied with the order of the High Court, the appellant filed a Special Leave Petition, which on grant of leave, was heard in presence of the learned counsel G for the parties.

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We have heard learned counsel for the parties and examined the provisions under Order XVI Rule 1 read with Rule - 1-A of the Code, under which the document was directed to be H produced and taken on record by the High Court by reversing

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ASHOK SHARMA V RAM ADHAR SHARMA [TARUN CHATTERJEE, J.]

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the order of the trial Court refusing to take the document on record.

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The trial Court, as noted herein earlier, refused the prayer for production of the document on a simple interpretation of the word "production" as used in Order XVI Rule 1 of the B Code which, according to the trial Court, would mean that the witness can be summoned to bring the record to prove the documents placed on record by the parties to the suit, but in the present case, the said document was not produced by the respondent either along with the plaint or at the time of framing of issues and, therefore, no document can be taken on record at^c that stage.

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In our view, the High Court was justified in permitting the document to be taken on record at the instance of the witness PW-3. It is not in dispute that the copies of the same cannot be placed on record by the respondent and they can only be produced on record by summoning the witness, who has the power and possession of the said documents. It is an admitted position as well that since the respondent is simply a member of the society, question of being in possession of the record showing the completion of the construction of the suit premises could not be with the plaintiff/respondent whereas the said document must be with the society, whose President came forward to give evidence and to produce the documents.

Order XVI of the Code deals with summoning and attendance of witnesses. The Court under Order XVI Rule 1, on or before the date, may appoint but not later than 15 days after the issues are settled, the parties shall present in Court~ list of witness whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. Order XVI Rule 1-/, however, gives a right to a party to a suit to produce witness without summons. Order XVI Rule 1-A of the Code runs as under:-

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"Rule 1 A : Production of witnesses without summons

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SUPREME COURT REPORTS

[2009) 2 S.C.R.

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A - Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may,"without applying for summons under Rule 1, bring any witness to give evidence or to produce documents."

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A plain reading of this provision would clearly show B that Rule 1-A of Order XVI of the Code has been substituted by the Legislature to empower a party to bring any witness without obtaining summons subject to the permission of the Court,even if the name of the witness is not in the list to be presented within 15 days of settlement of issues. After issues were framed, the c respondent in order to prove the date of completion of construetion of the Society in which the suit premises is located, summoned Sh. Pawan Kumar Vasudeva, the President of the Society, (PW-3) to bring the ·record of completion of construction of te suit premises which is located in the said area of the SociD ety. The trial court had allowed the summoning of the President of the Society for the purpose of showing the time of the completion of construction of the suit premises. PW-3 identified his signature on Ext.PW-1/3 which was the certificate issued by E^{the said society to the respondent. Thereafter, the said witness} produced-th~ documents of completion of construc!ion of the society which were summoned by the respondent, but the trial court by the order dated 2"d of May, 2006 rejected the application and did not allow the witness to place the documents F^{·brought by him on record on the ground mentioned herein ear-} lier.

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As noted herein earlier, the High Court has reversed the order of the trial court and allowed production of the document produced by PW-3. In our view, there is no ground for which G we can hold that the order of the High Court was not properly passed. As noted herein e·arlier, Order XVI Rule 1 and 1-A of the Code, if read together, would clearly indicate that it is open to a party to summon a witness to the Court or even may, without applying for summons, bring a witness to give evidence or H to produce documents. Since Rule 1 A is subject to the provi-

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,._ -

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ASHOK SHARMA V RAM ADHAR SHARMA - 15 [TARUN CHATTERJEE, J.]

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sions of sub-Rule 3 of Rule 1, all that can be conten.ded is that'"· A before proceeding to examine any witness, who might' have been brought by a party for the purpose, the leave of the Court may be necessary. This by itself would not mean that Rule 1_-A · was in derogation to sub-Rule 3 of Ru_le 1. Such document brought by the said witness can be taken on record and it is not ·- B necessary that the plaintiff must have filed on record the copies of the said document earlier. Be it mentioned herein, the question of filing a copy of the said document by the plaintiff could -t not also arise in view of the fact that the document was or cannot be in possession of the plaintiff-respondent. Since the plain- c tiff-respondent was simply a member of the Society, therefore, the record of completion of the construction of the suit premises can only be proved by the plaintiff/respondent by production of documents which was only in possession with the Society. While considering the scope of Order XVI, Rule 1 and Rule 1A of the 0 Code, this Court in Mange Ram Vs. Brij Mohan & Ors. [AIR • 1983 SC 925] held that the Court cannot decline to examine the witnesses produced by the plaintiff nor the court could refuse to take the documents on record through the witnesses. In para 11 of the said decision, this Court observed as follows:-

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"But if on the date fixed for recording the evidence in an election petition, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A." (Emphasis Supplied)

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Again in Vidhyadhar Vs. Manikrao & Anr.[1999 (3) sec 573], this Court following the decision of Mange Ram VS. _... Brij Mohan & Ors. [supra] has also held that Order XVI, Rule 1 and Rule 1 A of t~e Code permits the court to pass the order directing the witnesses to take the documents on record. Only, while dealing with the application for production of documents under Order XVI Rule 1 read with Rule 1-A of the Code, what is

[2009] 2 S.C.R.

16 SUPREME COURT REPORTS

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A required was that, leave of the court would be necessary. In this view of the matter and applying the principles laid down in the aforesaid two decisions of this Court, we are not inclined to interfere with the impugned order of the High Court by which the High Court had allowed the documents to be taken on record to B prove the date of completion of the construction of the suit premise_s within the area of the Society. At the risk of repetition, it must be stated that the date of construction of the suit premises, which is located within the-area of the Society, cannot be proved · except by the production of the document of the society which c could only be produced by the Society. 14. For the reasons aforesaid, there is no merit in this appeal. The appeal is thus dismissed. There will be no order as to costs. B.B.B. Appeal dismissed.

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I ~ ~ 1-"'" ~ ) ~ I . I ib" t :i "- I

Ashok Sharma v. Ram Adhar Sharma

Case brief

What is this about?

What did the court decide?

Ashok Sharma v. Ram Adhar Sharma

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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Procedural history

Parties & counsel

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