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2008 DIGILAW 324 (AP)

M. Dhananjaiah Goud v. Mogudampally Chandraiah

2008-05-02

G.CHANDRAIAH

body2008
ORDER Heard both the Counsel. 2. Aggrieved by the order dated 27.11.2007 passed by the Court of Senior Civil Judge, Medak, Medak District, in allowing the I.A. and thereby summoning the witnesses sought for by the election petitioner, the 1st respondent in the election O.P., filed the present revision. 3. From the material on record it could be seen that the 1st respondent herein, filed election petition to declare the election of the revision petitioner as void and along with the election petition, he filed bona fide certificates of the children of the revision petitioner, obtained from the Head Master of Z.P.H.S., Turkalakanapur and Head Master of Vidya Bharathi Talent School, Doulathabad, Mandal, Hathnoora and further he also filed true copy of house hold information issued by the Tahsildar of Hathnoora Mandal and to prove the said documents, which were marked, he sought for summons of the authorities and the Court below by the impugned order allowed the petition and directed the issuance of summons on payment of necessary process fee. Aggrieved by the same, the present revision is filed by the 1st respondent in the election petition. 4. The learned Counsel appearing for the revision petitioner contended that the I.A. was filed under Order 18 Rule 17 of C.P.C., which is applicable for recalling of the witnesses who were already examined and hence the said provision is not at all applicable. He further submitted that the 1st respondent sought multiple prayers in one petition and hence the same is not permissible in view of Rule 55 of Civil Rules of Practice. He also contended that the 1st respondent has not chosen to file the list of witnesses before the commencement of trial, as required under Order 16 Rule I of C.P .C. and, thereafter after the examination of the 1st respondent, the present petition is not maintainable. With these submissions, he sought for setting aside the impugned order. 5. On the other hand, the learned Counsel appearing for the 1st respondent supporting the impugned order, sought for dismissal of the revision. 6. With these submissions, he sought for setting aside the impugned order. 5. On the other hand, the learned Counsel appearing for the 1st respondent supporting the impugned order, sought for dismissal of the revision. 6. The 1st respondent herein filed election petition to declare the election of the revision petitioner as void and he filed the above referred documents and at the time of enquiry he also filed house hold information of revision petitioner given by the authorities concerned and they are marked and further his case is that, for proving his case, the authorities who issued those documents are necessary to be examined. In this regard it is necessary to note relevant portion of Order 16 Rule I of CPC and the same is extracted as under for better appreciation : 1. list if of Witnesses and summons to Witnesses. (1) 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. (2) 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. (3) 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 of the omission to mention the name of such witnesses in the said list. (4) ..... 7. From a reading of the above provision it could be seen that under Order 16, sub-rule (1) of Rule 1 contemplates that 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, not later than fifteen days after the settlement of issues. As per sub-rules (2) and (3) of Order 16 Rule 1, if a party desirous of obtaining any summons for the attendance of any person, whom he omitted to show in the list as contemplated under sub-rule (1), sha1.l file an application for the said purpose by showing sufficient cause and the Court may by recording reasons, permit a party to call such witness. Therefore, it could be seen that discretion is granted under sub-rule (3) of Rule 1 to the Court, for the reasons to be recorded, to summon the witnesses whose names are omitted in the earlier list for the sufficient cause shown by the party. In the present case, the 1st respondent has produced certain documents and further during enquiry, he produced some more document and they were all marked and his case is that those documents have to be proved by examining the authorities who issued them and it is necessary to prove his case in the election petition. The Apex Court in the decision reported in Mange Ram v. Brij Mohan, AIR 1983 SC 925 , in an election petition, though in a different situation while considering the alleged contradiction between sub-rule (l) of Rule 1 and Rule I-A of Order 16 held that Order 16 Rule 1(3) confers wider jurisdiction on the Court to cater to different situations. In the present case, though the 'sufficient cause' for omission of the names of the witnesses in the list contemplated under sub-rule (1) of Rule 1 of Order 16 is obscure, since the discretion is granted to the Court, in the light of the above facts and circumstances and considering the main relief sought for by the 1 st respondent and to have a comprehensive adjudication and to do complete justice, I am of the view, the Court below has rightly exercised its discretionary jurisdiction. 8. A learned Single Judge of this Court in G.K. Murthy v. B.R. Rao, AIR 1973 AP 309 , held that under Order 16 Rule 1, the Court cannot refuse to issue summons on technical grounds. While considering various judgments, the learned Single Judge has summed up with regard to Order 16 Rule 1 of C.P.C. as under: "9. A reading of the above authorities leads can refuse to issue summons and in all me to lay down the following propositions: 1. While considering various judgments, the learned Single Judge has summed up with regard to Order 16 Rule 1 of C.P.C. as under: "9. A reading of the above authorities leads can refuse to issue summons and in all me to lay down the following propositions: 1. Under Order 16 Rule 1 Civil P.C., it is the right of the party at any stage of the suit to make an application to the Court seeking that summons be issued to a witness either to give evidence or to produce documents. 2. The Court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit. 3. If the summons is not served by the adjourned date of the suit the party who filed the application to issue the summons would take the risk. 4. If an application for adjournment is made at the instance of the party who applied under Order 16 Rule 1, Civil P.C. it is for the Court to consider whether or not an adjournment should be granted. 5. The Court may not refuse to order an application under Order 16 Rule 1, Civil P.C. on the ground that the evidence, if produced, may not be of any help to the applicant. 6. Though Order 16 Rule 1, Civil P.C. does not in terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16 Rule 1, Civil P.C. in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingences the application must almost always be ordered." 9. Except in these three above contingences the application must almost always be ordered." 9. From the above it is clear that in the situations, where the application filed seeking issuance of summons is not bona fide or vexatious or issuing summons would result in abuse of process of law, the Court can refuse to issue summons and in all almost all other circumstances, the Court shall issue summons for examination of witnesses under Order 16 Rule 1 of C.P.C. In the present case, all the circumstances enumerated by the learned Single Judge in the above judgment are not forthcoming and there is no material to that effect or there is no material to that effect of there is any averment in that regard. Hence, the Court below has rightly allowed the application. 10. In view of the above decisions, I am of the considered view that the Court below has rightly allowed the present I.A. 11. Coming to the other contentions that multiple relief are sought in one application and that wrong provision of law is quoted is concerned, it is to be seen that the 1st respondent sought for summons to different authorities and the relief sought is only summons and this cannot be treated as multiple relief and it is also to be noticed that quoting wrong provision of law, will not preclude the Court from granting the relief under correct provision, if the party is otherwise entitled to. In the present case, the Court below has rightly allowed the prayer sought for by the 1st respondent. Hence, in my considered view, the objections in this regard are purely technical and does not merit for consideration. 12. For the foregoing reasons, the revision petition is dismissed. No costs.