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2008 DIGILAW 607 (AP)

D. K. Narasamma v. G. Renuka Devi

2008-08-01

P.S.NARAYANA

body2008
Judgment : This Court ordered notice before admission on 1-7-2008 and granted interim stay for a limited period. 2. Sri Navin Kumar entered appearance on behalf of the respondent. 3. Sri K.Mahadev and Sri Navin Kumar, the Counsel representing respective parties made a request for the final disposal of the Civil Revision Petition. 4. Sri Mahadeva, the learned Counsel representing the petitioners would maintain that in the light of the facts and circumstances the husband of the respondent who is a crucial witness and who worked as Sub-Inspector of Police at Kurnool at the relevant point of time cannot be examined by the revision petitioners in view of the relationship between the said Sub-Inspector of Police with the respondent. However, in the light of the fact that certain crucial facts are to be established, it may be just and proper to examine him as Court witness and such a request had been made despite the fact that certain decisions had been relied upon distinguishing the same on the ground that the facts are totally different and dismissing the application as not maintainable cannot be sustained. 5. Per contra, Sri Navin Kumar, the learned Counsel representing the respondent laid emphasis from the language of Order XVI Rule 14 of the Code of Civil Procedure and would maintain that the words "Court may of its own motion" would go to show that it is the discretion of the Court either to allow such application or dismiss such application and in the light of the reasons recorded by the learned Principal Senior Civil Judge, Kurnool, the present Civil Revision Petition being devoid of merit, the same to be dismissed. 6. Heard the Counsel on record. 7. The present Civil Revision Petition is preferred by the unsuccessful petitioners-defendants 1 to 7 in I.A.No.423/2008 in O.S.No.375/2004 on the file of Principal Senior Civil Judge, Kurnool. The said application was filed by the petitioners under Order XVI Rule 14 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) to summon the petition schedule witness as a Court witness. The learned Principal Senior Civil Judge, Kurnool after recording the respective stands taken by the parties, having formulated the point for consideration at para 5, recorded reasons at paras 6 and 7 and ultimately dismissed the application. The learned Principal Senior Civil Judge, Kurnool after recording the respective stands taken by the parties, having formulated the point for consideration at para 5, recorded reasons at paras 6 and 7 and ultimately dismissed the application. Aggrieved by the same, the present Civil Revision Petition had been preferred. 8. Before taking up further discussion, in the light of the rival contentions advanced by the Counsel on record, it may be appropriate to have a glance at Order XVI Rule 14 of the Code which deals with "Court may of its own accord summon as witnesses strangers to suit" reads as hereunder:- "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 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." 9. The case of the petitioners is that the respondent as plaintiff instituted a suit praying for the relief of specific performance of an agreement of sale dt.19-9-2001 and no doubt the petitioners had taken the defence denying the execution of the said agreement of sale. It is the case of the petitioners that the husband of the respondent by name G.Harinath Babu who worked as Sub- Inspector of Police, Kurnool IV Town Police Station, during the relevant time was the master mind behind this litigation and the said Sub-Inspector of Police as husband of the respondent issued a receipt for Rs.40,000/-dt.15-9-2001 and the respondent in her cross-examination denied the said receipt. It is also stated that the Sub-Inspector of Police being the husband of the respondent may not support the petitioners, but however, to establish certain crucial facts, the said Sub-Inspector of Police to be examined as a Court witness. The respondent had taken a stand that there are no valid reasons to summon the said witness as a Court witness. Further specific stand had been taken that no purpose is served by summoning the said witness - the then Sub-Inspector of Police, Kurnool. The respondent had taken a stand that there are no valid reasons to summon the said witness as a Court witness. Further specific stand had been taken that no purpose is served by summoning the said witness - the then Sub-Inspector of Police, Kurnool. It is pertinent to note that the decision of this Court in G. Padmanabham Vs. N. Narasimha Reddy 2000 (6) ALT 364 (D.B.) was brought to the notice of the learned Judge and the learned Judge observed that it is clear from the observations that this petition under Order 16 Rule 14 of the Code is maintainable, but further observed that insofar as the facts and circumstances referred in the cited decision are totally different from the facts and circumstances of the case on hand and also further observed that though this petition is maintainable, the petitioners failed the show the grounds to summon the petition schedule witness as a Court witness and hence the learned Judge was inclined to dismiss the said application. The language of Order XVI Rule 14 of the Code already had been specified supra. The object underlying the said provision is to the effect that the Court to be empowered to summon such witnesses as Court witness till the Court is satisfied that examination of such witness may be necessary for adjudicating the questions in controversy between the parties. It is no doubt true that the facts and circumstances may have to be taken into consideration while exercising the discretion while summoning a witness as a Court witness or while declining to summon a witness as a Court witness. In P.S. Chetty V. K.E. Reddy 1988 (1) ALT 279 the learned Judge of this Court while explaining the object of Order XVI Rule 14 of the Code observed as hereunder:- "Order 16 Rule 14 C.P.C. provides that the Court may of its own initiating or suo motu cause any person to be examined as a witness though either of the parties did not choose to take steps for summoning such person as a witness. This power obviously intended in the interests of justice is aimed at clarifying certain situations and remove ambiguities and fill up lacuna and thereby further justice. This power obviously intended in the interests of justice is aimed at clarifying certain situations and remove ambiguities and fill up lacuna and thereby further justice. The parties may refrain from summoning a crucial witness in the event of their apprehension of full fledged support and in such a situation the Court may summon such person to give evidence to arrive at the correct factual picture and this witness is called a 'Court witness'. Order 16 Rule 14 visualises the initiative by the Court only to examine any person and it is for the Court to consider of its own accord the necessity of invoking power under this rule without propulsion or application by the parties. The exercise of this power is in the nature of "self-starter" without extraneous pressure or pull. The Court below while declining to invoke the power appears to have been swayed by consideration that the Court is precluded from doing so at the instance of either party. It is true that the Court is not obligated to invoke the power at the instance of the parties and the parties have no right to move an application under this rule. But however either of the parties can bring to the notice of the Court the necessity for examining any person as Court witness. On such application the Court may scan the totality of facts and circumstances apart from the situations projected by the parties and arrive at an independent conclusion as to the necessity of a Court witness. The parties are not totally barred from bringing to the notice of the Court by application or otherwise and the Court is not bound to take action on the averments or allegations contained in the application and it is the sold discretion of the Court. The application by the parties may be considered as passing on the information so that the Court may examine the issue in depth on the facts and circumstances set out in the application and other aspects." In G. Balaiah Vs. The application by the parties may be considered as passing on the information so that the Court may examine the issue in depth on the facts and circumstances set out in the application and other aspects." In G. Balaiah Vs. G. Ramchander 1997 (5) ALT 463 the learned Judge of this Court observed at paras 7 and 8 as hereunder:- "In the case before this Court, the learned trial Judge merely observed that in a suit for simple injunction, title need not be decided, but incidentally the same had to be gone through and for that purpose it was not objectionable for the Court to call the witness as Court witness and examine him. In p. S. Chetty's case (2 supra), it is observed that the parties may refrain from summoning a crucial witness in the event of their apprehension of full fledged support and in such a situation the Court may summon such person to give evidence to arrive at the correct factual picture. In the impugned order before us it is not clarified whether the Court considered it worthwhile to examine the witness in question as Court witness on account of any apprehension expressed by any party to examine him. It is also observed in the aforesaid decision of this High Court in P. S. Chetty's case (2 supra) that the Court may scan the totality of facts and circumstances apart from the situations projected by the parties and arrive at an independent conclusion as to the necessity of a Court witness. No such exercise has been gone through by the learned trial judge in the case before this Court. However, from the averments made by the learned Counsel for the rival parties before this Court it appears that the plaintiff carries an apprehension that the witness D. Lingamaiah may or may not support his case and, therefore, made the interim application for examining him as the Court witness. With this situation in view, it appears that the trial Court has exercised its discretion to examine the witness as Court witness. With this situation in view, it appears that the trial Court has exercised its discretion to examine the witness as Court witness. There is no reason why this discretion exercised by the trial Court need be assailed so long as it is not pleaded by the opposite party that any prejudice was likely to be caused on that account or that the exercise of jurisdiction was mala fide in any manner." In G. Padmanabham's case (referred 1 supra) the learned Judge of this Court observed at paras 5, 6, 7, 8 as hereunder:- "The other ground given by the Court below was that the petitioner having knowledge of the factum of negotiation by Y.V. Seshaiah and having failed to summon him as witness, he cannot approach the Court for exercising discretion vested in him under Order 16, Rule 14, CPC for summoning the witness as Court witness. I have seen the affidavit filed by the petitioner. He categorically stated that Mr. Y.V. Seshaiah who negotiated the transaction was the counsel for the respondent till reply was given and hence it is not safe for him to summon the said Advocate as his witness for supporting his case. I feel that the petitioner has properly explained to the Court under what circumstances he was not willing to summon the advocate as his own witness. If the said advocate is summoned as witness of his own to support his case, he will lose the chance of cross-examining the witness. Hence to my mind he has exercised his discretion in not summoning the advocate as his witness. From the evidence of both the parties, it is evident that Mr. Seshaiah approached the first respondent requesting him to alienate the property in favour of the petitioner; while it is the case of the petitioner that the defendant-respondent agreed to sell the property for consideration of Rs. 6,50,000. 00 in the presence of Y.V. Seshaiah, it is the case of the respondent that he never told them that he has already entered into an agreement with the second respondent and hence the question of selling the property to the petitioner does not arise. A suggestion was made to the second respondent that the registered sale deed was executed after the suit for specific performance was filed. A suggestion was made to the second respondent that the registered sale deed was executed after the suit for specific performance was filed. A suggestion was also made that the first respondent changed his counsel as there was collusion between him and Y.V. Seshaiah and engaged another advocate as his counsel. Of course this suggestion was denied by the respondent. From the factual narration, it is seen that Mr. Y.V. Seshaiah played some role in this transaction and result of the suit depends upon the testimony of this witness one way or the other. Hence he being a crucial witness in this case and as the petitioner gave sufficient reasons for not summoning him as his witness, he brought to the notice of the Court that Mr. Y.V. Seshaiah is important witness in the transaction and he may be summoned as Court witness exercising the discretion vested in it under Order 16, Rule 14. It is well settled principle that discretion vested in the Court under Order 16, Rule 14 can be exercised either by the Court suo motu or at the instance of the party. The Court has not exercised its discretion properly taking the totality of the circumstances and usefulness in summoning the witness for arriving at just decision. In fact this Court in P. Subrahmanyam Chetty v. Katari Ellappa Reddy, (1988) 1 ALT 279 held that the power is obviously intended in the interests of justice and is aimed at clarifying certain situations and remove ambiguities and fill up lacuna and in furtherance of justice. The parties may refrain from summoning a crucial witness in the event of their apprehension of full fledged support and in such a situation the Court may summon such person to give evidence to arrive at the correct factual picture and this witness is called a 'court witness'. Order 15, Rule 14 visualizes the initiative by the Court only to examine any person and it is for the Court to consider of its own accord, the necessity of invoking power under this rule without propulsion or application by the parties. The exercise of this power is in the nature of 'self-starter' without extraneous pressure or pull. This judgment was followed in another decision by this Court in G. Balaiah v. G. Ramachander, (1997) 5 ALT 463 . The exercise of this power is in the nature of 'self-starter' without extraneous pressure or pull. This judgment was followed in another decision by this Court in G. Balaiah v. G. Ramachander, (1997) 5 ALT 463 . Thus, it is revealed that the Court is empowered to exercise its discretion even to fill up the lacunae that are found in the case either to clarify the situation or to remove the ambiguity in furtherance of justice. Accordingly this ground also has no locus to stand. The learned counsel for the first respondent strenuously argued that the advocate cannot be compelled to give evidence, particularly when the case is at the stage of argument and failure to examine the witness proposed to be examined though he has knowledge from the beginning of the case. The judgment referred to above will answer this contention. The learned counsel for the first respondent raises one more contention to the effect that when once the Court exercises discretion by giving cogent reasons, the High Court sitting in revisionary jurisdiction cannot interfere with the order. I have already given my reasons pointing out the error committed by the Court below in exercising the jurisdiction vested in it in furtherance of justice. That is why, I am forced to interfere with the judgment of the Court below. Mr. Krishna Mohan appearing on behalf of Mr. M.V.S. Suresh Kumar relied on a judgment of the Supreme Court in Biswanath Rai v. Sachhidanand Singh, AIR 1971 SC 1949 . This matter has arisen under Representation of the People Act, 1951 and in my view, the said judgment is more in favour of the petitioner than the respondent himself. In this case, their Lordships of the Supreme Court categorically observed that when an application is made against a party, it is for him to prove that there is no truth in the allegation in that behalf of the publication of pamphlet. Where a witness of one party deposes that a letter written by one 's' to him has been received by him, the burden lies on the other side to prove its allegation that the letter was not written by 's' or that it was written in collusion between 's' and the witness. Viewing from that angle, the case of the petitioner herein is that agreement of sale was entered into in the presence of Mr. Y.V. Seshaiah. Viewing from that angle, the case of the petitioner herein is that agreement of sale was entered into in the presence of Mr. Y.V. Seshaiah. If that is the case and when the respondent agreed that the petitioner met him along with Mr. Seshaiah the burden lies on him to show that no agreement was entered into between the parties in the presence of Mr. Y.V. Seshaiah. Hence to my mind, to prove his case that he told Y.V. Seshaiah, as well as the petitioner that as he entered into agreement with the second respondent already he cannot alienate the property to the petitioner by examining Mr. Y.V. Seshaiah who is no other than his counsel, till reply notice was given to the notice given on behalf of the petitioner seeking execution of the sale deed pursuant to the oral agreement of sale. The respondent except denying that he had not entered into any agreement with the petitioner, he did not choose to examine Y.V. Seshaiah as his witness. On this ground also I am of the opinion that the Court erred in not exercising the discretion judiciously to summon Y.V. Seshaiah as Court witness to find out the truth or otherwise of the rival contentions of the parties in the interest of justice. Hence, I set aside the order of the trial Court and direct the Court below to summon Y.V. Seshaiah as Court witness and give opportunity to both sides to cross-examine him to prove their own case." 10. The decision of G. Padmanabham's case (referred 1 supra) was brought to the notice of the learned Principal Senior Civil Judge, Kurnool. Here is a case where the revision petitioners-defendants in the suit had taken a specific stand relating to the passing of receipt by the husband of the respondent-plaintiff, the then S.I. of Police, and the respondent denying the receipt in cross-examination and further had taken specific stand that the S.I. of Police being the husband of the respondent may not support the petitioners. It may be that the said S.I. of Police, even if summoned, may take the self-same stand in the light of the close relationship between the said S.I. of Police and respondent- plaintiff, being the husband and wife. It may be that the said S.I. of Police, even if summoned, may take the self-same stand in the light of the close relationship between the said S.I. of Police and respondent- plaintiff, being the husband and wife. But however, when examined as a Court witness certain facts may be elicited by the parties for the purpose of proper adjudication of the questions in controversy between the parties. In the light of the same, this Court is of the considered opinion that the learned Principal Senior Civil Judge, Kurnool instead of dismissing the application could have exercise the discretion in favour of the revision petitioners by summoning the said witness as a Court witness in the light of the peculiar facts and circumstances of the case. Hence this Court is thoroughly satisfied that the learned Principal Senior Civil Judge, Kurnool had not arrived at the correct conclusion by negativing the relief prayed for in the application. In the light of the reasons specified above, the impugned order cannot be sustained. 11. Accordingly, the Civil Revision Petition is hereby allowed by setting aside the order made by the learned Principal Senior Civil Judge, Kurnool in I.A.No.423/2008 in O.S.No.375/2004. Let the learned Principal Senior Civil Judge, Kurnool, summon the witness specified in the application as a Court witness and give opportunity to the parties to put the necessary questions to the said witness for the purpose of eliciting the truth or otherwise of the respective sands taken by the parties. No costs.