Research › Browse › Judgment

Karnataka High Court · body

1995 DIGILAW 579 (KAR)

GANGABOVI v. SHANKAR SEVA SAMITHI (REGD. ), TUMKUR

1995-11-20

H.N.TILHARI

body1995
H. N. TILHARI, J. ( 1 ) HEARD learned Counsel for the revisionist applicant. ( 2 ) THE orders sought to be challenged by this revision, is order dated 3rd August, 1995, passed by Principal Munsiff, Tumkur, on an application purported to have been moved under Order 13, rule 10 read with Section 151 of the Code of Civil Procedure. The learned Court below has allowed summoning of witnesses named in that LA. to produce the documents summoned in order to enable the defendant being cross-examined. The learned counsel has submitted that Order 13, Rule 10 of C. P. C. , does not apply to the present case. This point had been considered by the court below and in my opinion it has rightly opined that the provisions under Order 16, Rules 1 and 2 of C. P. C. , read with section 151 will apply and not Order 13, Rule 10 of C. P. C. The court below has correctly taken the view that mere mention of a wrong provision of law will not make an application non-maintainable, if that application could lie under any provision. The application has rightly been held to be one under order 16, Rule 1 read with Section 151 of the C. P. C. , and it for a moment it be taken that no order or rule does apply, but in the interest of justice and for giving a due decision, it was necessary that document be produced. The inherent powers of the Court were there to meet a situation not covered by any provision of law. ( 3 ) THE learned Counsel for the applicant tried to urge that Order 18, Rule 17-A would apply and the application could be covered under Order 18, Rule 17-A. In my opinion this contention of the learned Counsel is without any substance. Order 18, Rule 17-A of C. P. C. , deals with production of evidence not previously known, which could not earlier be produced despite due diligence. Order 18, Rule 17-A of C. P. C. , deals with production of evidence not previously known, which could not earlier be produced despite due diligence. It means, it relates to the evidence in possession of the party or discovered by a party, but which could not be produced earlier because inspite of due diligence it was not within the knowledge of the party at the time when the evidence was recorded or it could not be produced inspite of due diligence at the relevant time that is the time when the party pleaded it or had lend other evidence. ( 4 ) HERE it is a case where the evidence or document is in possession of a third person and the document, the party wants to summon is bit late and wants to summon that witness. At page 9 of the petition, the Court has dealt with the matter and observed in the cross-examination of D. W. 1 it was suggested to him that he sold 1110 Sq. Ft. , of land to one D. R. Lalithamma. That has been denied. The plaintiff has produced the certified copy of the same and that LA. came to be allowed and when with document D. W. concerned was confronted. Since without the original document D. W. 1 could not be confronted, Court did not grant the permission. That is why the plaintiff has filed this application. The rules of confrontation requires that it is the original document with which one has to be confronted. The court has indicated this circumstance which necessitated summoning of the original document so that D. W. 1 could be confronted with that document. ( 5 ) IN this view of the matter, I am of the opinion that the learned Court below did not commit any jurisdictional error in allowing that application and in summoning the witness named in the LA. , calling upon him to produce the original document in question. The order when considered thus in may opinion cannot be said to suffer from any error. Yet even if it could be said to suffer from any error of jurisdiction or error in any manner, it has no tendency of causing any injury or any irreparable injury and injustice to the present revisionist-applicant. The order when considered thus in may opinion cannot be said to suffer from any error. Yet even if it could be said to suffer from any error of jurisdiction or error in any manner, it has no tendency of causing any injury or any irreparable injury and injustice to the present revisionist-applicant. In my opinion this is not a fit case for interference under Section 115, C. P. C. , in view of proviso to Section 115 (1 ). That as such in my opinion, the civil revision is liable to be dismissed as such is hereby dismissed as without merits. --- *** --- .