ABDUL RAHIMAN v. MAHENDRA AJANI — 1983 DIGILAW 58 (KER)

Judgment :- 1. These two revisions are filed by the 1st respondent in LA. Nos. 125 and 123 of 1983 in O.S. No. 438 of 1982 on the file of the Subordinate Judge's Court, Tellicherry. The revision petitioner is the defendant in this suit. The plaintiff in the suit as also defendants 2 to 4 are the respondents in these civil revision petitions. The said LA. Nos. 125 and 123 of 1983 were filed by the plaintiff in the suit against the revision petitioner (1st defendant) and respondents 2 to 4 (defendants 2 to 4 in the suit). The said interlocutory applications were filed by the plaintiff in the suit under Order XVI R.14 read with S.151 of the Civil Procedure Code, praying that the court may be pleased to summon the Nedungadi Bank, Cannanore and the Canara Bank, Cannanore to cause production of the documents mentioned in the affidavit. O.S 438 of 1982 was filed by the 1st respondent herein stating that the proprietory concern "ARES SPICES" owned by the 1st defendant, revision petitioner herein, along with other establishments belonging to defendants 2 to 4 utilised the plaintiff's services as commission agent and obtained bulk orders through him. The suit was filed to recover a sum of Rs. 56,238/-being the commission due from the revision petitioner for the turn-over of the business solicited by the plaintiff. After the filing of the suit and even before the notices were served on the defendants, the plaintiff filed LA. No. 125 of 1983 and I. A. No. 123 of 1983 under 0.16 R.14 of the Civil Procedure Code to summon Nedungadi Bank, Cannanore and Canara Bank, Cannanore to produce the accounts and other documents relating to the accounts of the petitioner. The plaintiff alleged certain corrupt practices. The petitions were filed on 12-1-1983. The court below heard the plaintiff's counsel and passed an order in both the interlocutory applications. The court adverted to the allegation of the plaintiff that the defendant have committed corrupt practice and that the documents mentioned in the affidavit are quite essential for proving the case of the plaintiff and that if no emergent summons is issued, defendants will be able to influence the bank to conceal these documents. The court adverted to the allegation of the plaintiff that the defendant have committed corrupt practice and that the documents mentioned in the affidavit are quite essential for proving the case of the plaintiff and that if no emergent summons is issued, defendants will be able to influence the bank to conceal these documents. Placing reliance on the decision reported in Khaje Khanavar Khadarkkan Hussain Khan and another v. Siddavanahalli Nijalingappa and another (AIR 1969 SC.1034) the court observed: "In the light of this decision it can be seen that the fear of the plaintiff is well-founded. There is nothing impossible for a determined man. Hence it is only proper that the documents are summoned. The petition is allowed. The plaintiff is to pay batta. The witnesses may cause production of the document on 17-1-1983." Substantially a similar order was also passed in I.A.No.125 of 1983 on the same day, Whereas I. A. 125 of 1983 was directed against Nedungadi Bank, Cannanore, I..A.123 of 1983 was directed against Canara Bank Cannanore. 2. The 1st defendant has filed the revision petitions from the aforesaid orders passed by the court below. On facts, the revision petitioner disputes the claim and the basis of the claim put forward by the plaintiff in the suit. Counsel for the revision petitioner Mr. M. A. Manhu attacked the order of the court below as totally without jurisdiction. Counsel contended that the court below misconstrued Order XVI R.14 of the Civil Procedure Code and has exercised a jurisdiction not vested in it by law. It is common ground that at the time when the interim applications were made before the court below, even summons were not served on the defendants. Counsel contends that the provisions of Order XVI R.14 are not attracted to such cases. The court below has also exercised the jurisdiction illegally and with material irregularity. The orders passed by the courts below if allowed to stand would occasion failure of justice and have also caused irreparable injury to the revision petitioner. On these premises the orders are sought to be set aside. On the other hand, the counsel for the plaintiff, Ist respondent, contends that the court below had jurisdiction to pass the impugned order, and places reliance on the provisions of Order XVI R.14 of the Civil Procedure Code (only). On these premises the orders are sought to be set aside. On the other hand, the counsel for the plaintiff, Ist respondent, contends that the court below had jurisdiction to pass the impugned order, and places reliance on the provisions of Order XVI R.14 of the Civil Procedure Code (only). According to counsel, even if it is not so, the impugned order will not be "a case decided" so as to enable this court to exercise revisional jurisdiction. It is also contended that there is no error of jurisdiction and that by the impugned order, there is no failure of justice nor will irreparable injury be caused to the revision petitioner. 3. Since the entire controversy centres round the scope of Order XVI R.14 of the Civil Procedure Code it is useful to extract the said provisions: "14. Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the court at any time thinks it necessary (to examine any person, including a party to the suit) and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document." (emphasis supplied) In the decision reported in Bishwanath Rai v. Sachhidanand Singh (AIR. 1971 SC. 1949) at page 1952 the court held: "Of course, the manner in which the appellant could obviously challenge this letter was by examining Swamiji himself as a witness. Instead of examining Swamiji as a witness, the appellant adopted the procedure of making an application to the High Court to summon him and examine him as a Court witness. That request was first put forward at a very early stage before examination of witnesses of parties had commenced. The court rightly held that It was too early a stage for the Court to come to a finding whether the examination of Swamiji as a Court witness was necessary. Such an opinion could only be formed-after evidence of parties was over. The court rightly held that It was too early a stage for the Court to come to a finding whether the examination of Swamiji as a Court witness was necessary. Such an opinion could only be formed-after evidence of parties was over. The appellant was, therefore, directed to move the application at the appropriate stage" The case before the Supreme Court arose under the Representation of People Act. That Act enjoins that all the powers under the Code (CPC.) can be exercised and all the procedure as far as may be applicable to the trial of Civil Suits may be followed in the trial of election petitions. The decision was rendered in the light of Order XVI R.14 of CPC. being applicable to the trial of election petitions. It is evident from the language used in Order XVI R.14 of the Civil Procedure Code and in particular the words "and not called as a witness by a party to the suit" and the above observations by the Supreme Court, that the court cannot exercise the power under Order XVI R.14 before examination of the parties had commenced and that it could be done only after evidence of the parties are over. In this case, admittedly even summons were not served on the defendants. It was too early a stage for the trial court to exercise the power vested in it under Order XVI R.14 of the Civil Procedure Code. I am of the view that the Court below had no jurisdiction to pass the impugned order at the threshold of the suit and to summon the Bank Managers concerned to cause production of the documents mentioned in the affidavit of the petitioner in exercise of its powers vested in it under Order XVI R.14 of the CPC. The decision of the Supreme Court referred to by the court below in Khaje Khanavar Khadarkhan Hussain Khan and another v. Siddavanahalli Nijalmgappa and another (AIR. 1969 SC. 1034) was mis-understood. In my opinion, the Court below exercised the jurisdiction not vested in it by law, at the time, it passed the impugned order. It can also be said that the court acted in the exercise of jurisdiction, if any, illegally or with material irregularity. The decision relied on by the Lower Court Khaje Khanavar Khadarkhan Hussain Khan and another v. Siddavanaholli Nijalingappa and another (AIR. It can also be said that the court acted in the exercise of jurisdiction, if any, illegally or with material irregularity. The decision relied on by the Lower Court Khaje Khanavar Khadarkhan Hussain Khan and another v. Siddavanaholli Nijalingappa and another (AIR. 1969 S.C.1034 at p. 1044) has only followed its earlier decision reported in R. M. Seshadri v. G, Vasantha Pai and others (AIR. 1969 SC. 692). In the said decision at page 698 in Para.16 and 17, it is observed that in the face of the voluminous evidence adduced in the case, the trial judge reached the conclusion that in view of the fact that a larger number of cars were used for conveying voters to the polling booths he felt impelled further to consider who was responsible for hiring them. In that behalf he summoned the witnesses. Such a stage or situation was not reached in this case. 4. It is obvious that the court below has totally misconstrued Order XVI R.14 of the CPC. and exercised the jurisdiction not vested in it by law at the relevant stage of the suit If that be so, there is an error of jurisdiction in the orders of the court below. The argument of the 1st respondent that in view of the language of Order XVI R.14 the power under Order XVI R.14 can be exercised "at any time", even at the threshold of the suit, is not warranted by the terms of Order XVI R.14 of CPC. The further argument that the order impugned even if parsed without jurisdiction is not "a case decided" by a subordinate court lacks substance For the purpose of S.115 of the CPC., a case decided need not be a case 'finally' decided. All that it means is, that the decision should terminate a part of the controversy involving the question of jurisdiction. In the light of the explanation to S.115 CPC., it is futile to contend that the orders impugned herein do not come within the expression "case decided." The further plea of the 1st respondent that there is no jurisdictional error in the impugned orders,is devoid of substance. The court below has purported to act under Order XVI R.14 of the Civil Procedure Code. The court below has purported to act under Order XVI R.14 of the Civil Procedure Code. It is evident that on the language of the said statutory provision, Order XVI R.14 CPC., and as held by the Supreme Court in the decision reported in Bishwanath Rai v. Sachhidanand Singh (AIR. 1971 SC. 1949) the court below committed a serious error of law. This error of law committed by the court below is vital and it has got relation to and is concerned with the question of jurisdiction. So S.115 of CPC. is applicable The argument that there is no case made out for interference under S.115 of the CPC. is without force. The decision of the Supreme Court reported in Shri. M. L. Sethi v. Shri R. P. Kapur (AIR. 1972 SC. 2379) fortifies the above view. There is no substance in the argument of the counsel for the respondent, that even if the orders impugned are allowed to stand, there is no failure of justice nor irreparable injury to the revision petitioner within the meaning of the proviso to S.115 of the CPC. and so this court should not exercise its revisional jurisdiction. It need hardly be said that the relationship between the petitioner and the Bank is a confidential one, where there is mutual trust and confidence. The counsel for the revision petitioner contends that by the manner and method and the allegations on the basis on which the plaintiff moved the petitioner even before summons could be served on the defendant, has itself caused substantial and irreparable injury to him in that bis reputation and credit worthiness is substantially injured or impaired in the eyes of the Bank and other respectable persons, "Manifest injustice" has resulted due to the above unwarranted and unjustified step taken by the plaintiff. There is substance in this plea. I am of the view that if the order is allowed to stand it will cause irreparable injury to the revision petitioner. 5. In the result the orders passed by the court below in I. A. Nos. 125 and 123 of 1983 dated 12-1-1983 are set aside. The civil revision petitions are allowed with costs. Allowed.