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Andhra High Court · body

2008 DIGILAW 759 (AP)

Maddula Brahmaiah v. SRI RAMA FINANCIAL SERVICES

2008-09-11

P.S.NARAYANA

body2008
ORDER: The civil revision petition was admitted on 27.11.2006 by this Court and interim stay of trial had been granted in CRPMP No.7786 of 2006. CRPMP No.4938 of 2008 is filed by the first respondent praying for vacation of the interim stay granted by this Court in the application already specified supra. Respondents 2 to 4 though had been shown as parties in the revision petition, it is specified that they are not necessary parties. 2. At the time of hearing of the vacate application CRPMP No.4938 of 2008, Sri Y.V.Ravi Prasad, learned counsel representing the revision petitioner and Sri Janardhan Rao representing Sri K.Chidambaram, learned counsel representing the first respondent-plaintiff-vacate petitioner made a request for final disposal of the revision petition itself. Hence, the C.R.P. was heard finally by this Court. 3. Sri Y.V.Ravi Prasad, learned counsel representing the revision petitioner would maintain that the petitioner filed application in I.A.No.2217 of 2006 in O.S.No.55 of 2003 on the file of the Additional Senior Civil Judge, Eluru, under Order 16, Rule 6 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code') to direct the Chit Registrar to produce auction register, balance sheet, minutes book and other documents of chit transaction No.PMR 1/23 of Sri Rama Chits and Finance Corporation, Eluru. The counsel would maintain that the dismissal of the application filed under Order 16 Rule 6 of the Code on the ground that the Chit Registrar was not shown as a witness in the list of witnesses, cannot be sustained. The learned counsel also had drawn attention of this Court through Order 16, Rule 6 and also Order 16, Rule 1 of the Code and would maintain that these documents being essential for the purpose of deciding the question in controversy. The application was filed only praying for a direction to the Chief Registrar to produce auction Register, balance sheet, minutes book and other documents of chit transaction concerned. The counsel also would maintain that the other grounds referred to filing of C.C.No.108 of 2002 and obtaining certified copies of the documents also cannot be sustained for the reasons that the certifies copies of these documents were in fact never obtained and no attempt had been made on the part of the petitioner in this regard. The counsel also would maintain that the other grounds referred to filing of C.C.No.108 of 2002 and obtaining certified copies of the documents also cannot be sustained for the reasons that the certifies copies of these documents were in fact never obtained and no attempt had been made on the part of the petitioner in this regard. The learned counsel would maintain that the reasons, which had been recorded by the learned Additional Senior Civil Judge, Eluru, are unsustainable and the revision petition is to be allowed. The learned counsel relied on certain decisions to substantiate his submissions. 4. Per contra, Sri Janardhan Rao representing Sri K.Chidambaram, learned counsel representing the first respondent-plaintiff had taken this Court through the averments made in the affidavit filed in support of the application and also the stand taken in the counter and would maintain that unless the court is satisfied that the documents which are required to be produced before the court are relevant for the purpose of deciding the suit and such application need not be allowed. The learned counsel also would maintain that in a case of this nature the conduct of the parties also may have to be taken into consideration. The learned counsel pointed out to the reasons recorded by the learned Additional Senior Civil Judge, Eluru at para 7 and would maintain that in the light of the said reasons the impugned order does not suffer from any illegality and the same is liable to be dismissed. The learned counsel also placed strong reliance on certain decisions to substantiate his submissions. 5. Heard the counsel on record. Perused the impugned order and also the grounds raised in the revision petition. 6. The revision petitioner is the first defendant in O.S.No.55 of 2003 on the file of the Additional Senior Civil Judge, Eluru. The first respondent Sri Rama Financial Services, Eluru, represented by its Partner is the plaintiff as already referred to supra. Though respondents 2 to 4 (defendants 2 to 4) had been shown as parties in the revision, it was specified that respondents 2 to 4 are not necessary parties in the revision petition. The first respondent Sri Rama Financial Services, Eluru, represented by its Partner is the plaintiff as already referred to supra. Though respondents 2 to 4 (defendants 2 to 4) had been shown as parties in the revision, it was specified that respondents 2 to 4 are not necessary parties in the revision petition. The revision petitioner filed I.A.No.2217 of 2006 in O.S.No.55 of 2003 aforesaid under Order 16 Rule 6 and Section 151 of the Code praying for direction to direct the Chit Registrar to produce auction register, balance sheet, minutes book and other documents of chit transaction No.PMR 1/23 of Sri Rama Chits and Finance Corporation, Eluru. The said suit in fact was posted for cross-examination of P.W.1. It is the case of the revision petitioner that as per the averments of the plaint it is alleged that in connection with chit transaction the revision petitioner participated in the auction held on 14.4.2001 and he was declared as highest bidder having agreed to forego a chit loss of Rs.1,50,000/- and agreed to receive the prize amount of Rs.3,50,000/- and further it is stated that P.W.1 deducted the amount also is not true and correct. It is also stated that P.W.1 had not filed any document to show that the revision petitioner participated in the bid and bid was knocked down in his favour and that he had not produced any sureties as alleged. It is also stated that the original documents are with the Chit Registrar, Eluru relating to his chit transaction and it may be just and essential to confront these documents while cross-examining P.W.1 and hence it is necessary to direct the Chit Registrar to produce the auction register, balance sheet, minutes book and other documents relating to the said chit transaction. 7. The first respondent-plaintiff resisted the same by filing counter. It is stated that the petitioner-first defendant, who is accused in C.C.No.138 of 2002 on the file of the Special Judicial Magistrate of First Class (Mobile), Eluru, summoned the Chit Registrar, Eluru and the Chit Registrar was thoroughly examined as D.W.2 and also the first defendant obtained certified copies of the minutes and cash voucher and filed the same in the said case. More over, the petitioner himself filed C.C.No.108 of 2003 on the file of the II Additional Judicial First Class Magistrate, Eluru, against the plaintiff under Sections 467, 469, 471 and 420 IPC with false allegations and both the cases are pending. It is also stated that the first defendant filed the said C.C.No.108 of 2003 without any proof, except making oral allegations only with an intention to harass and to defame the plaintiff in the eye of society. It is also stated that the first defendant filed W.P.No.1895 of 2004 before this Court against the plaintiff and also the Chit Registrar, Eluru and the said writ petition was withdrawn by the first defendant voluntarily. It is also stated that the petitioner-first defendant can examine his witness during his turn and the application had been filed with a view to drag on the proceedings endlessly. 8. The learned Additional Senior Civil Judge, Eluru after referring to Order 16, Rule 1 and Order 16, Rule 6 of the Code and also relying upon the decision reported in Mangeram v. Briz Mohan1 recorded certain reasons and came to the conclusion that the witness was not cited in the list of witnesses and even otherwise inasmuch as in the criminal proceeding certified copies of the said documents had been obtained, it may not be necessary to allow the application and accordingly after recording certain further reasons the application was dismissed. Hence, the present revision petition. 9. Order 16 of the Code deals with summoning and attendance of witnesses. Order 16 Rule 6 of the Code deals with summons to produce documents and the said provision specifies "any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same." A person summoned to produce the document cannot be cross-examined unless and until he is called as a witness. 10. Section 139 of the Indian Evidence Act, 1872 dealing with cross- examination of person called to produce a document specifies "a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness." 11. 10. Section 139 of the Indian Evidence Act, 1872 dealing with cross- examination of person called to produce a document specifies "a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness." 11. It is no doubt true that in the present case the reason mentioned in the affidavit is that these documents are required for the purpose of cross- examination of P.W.1, who is in the witness box. It is also stated that P.W.1 had not produced all these documents. The stand taken in the counter is that certified copies of these documents already had been obtained and hence there is no need to give such a direction directing the Chit Registrar to produce the documents, which had been already specified above. 12. Reliance was placed on a decision reported in Chatra Pratap Singh v. Tulli Prasad2 wherein the question relating to production of document by a person who is in custody of the document in the context of Order 16 Rule 5 read with Order 16 Rule 15 thereof of the Code and Section 162 of the Indian Evidence Act, 1872 had been dealt with. Reliance was also placed in Addagatla Narender v. Some Vijayalakshmi3 wherein this Court while dealing with Order 16 Rule 1 of the Code observed at paras 7 and 8 as under: "The Division Bench of the Madhya Pradesh High Court in Brij Mohangupta vs. Premchand Jain while dealing with Order XVI Rule 1 of the CPC observed as hereunder: "On reading of Order 16, Rule 1 Civil Procedure Code, it is clear that in a suit, after the issues are settled, a party is bound to present in Court a list of witnesses whom he proposes to call either to give evidence or to produce documents, and obtain summonses to such persons for their attendance in Court. Such list must be filed 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. Under sub-rule (2) of Rule 1 of Order 16 a party desirous of obtaining any summons for the attendance of any person, has to file an application in Court stating therein the purpose for which the witnesses is proposed to be summoned. Under sub-rule (2) of Rule 1 of Order 16 a party desirous of obtaining any summons for the attendance of any person, has to file an application in Court stating therein the purpose for which the witnesses is proposed to be summoned. Sub-rule (3) of Rule 1 confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted under sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1(a) of Order 16 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of Order 16. Unless statutory infraction is imperative, procedural technicalities not to defeat the substantial justice. Permitting let in of all admissible evidence is the general rule, rejecting thereof under specified circumstances to be an exception always. Liberal approach to lean in favour of doing substantial justice despite the procedural technicalities, may be highly essential in several of the cases lest the very justice delivery system will suffer in its working to the detriment of the litigant public." 13. Reliance was also placed in Mange Ram v. Brij Mohan4 wherein the Apex Court at paras 9 and 10 observed as under: "If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court. When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of Order XVI. When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of Order XVI. The consequence is that where the witness summoned either to give evidence or to produce documents fails to attend or to produce the documents in compliance with such summons, the Court on being satisfied of the service as provided therein and is further satisfied that the person has without lawful excuse failed to honour the summons, the Court may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed in the manner therein provided. Simultaneously, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property for such amount as it thinks fit. Even if thereafter the witness fails to appear, the Court may impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part, thereof, to be attached and sold as provided in Rule 12 of Order XVI. In view of this legal consequence ensuing from the issuance of a summons by the Court and failure to comply with the same, the scheme of Rules 1, 1A of Order XVI and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to examine and procure presence with the assistance of the Court. There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the presence of a witness, obviously the party can produce such witness on the date of hearing and the Court cannot decline to examine the witness unless the Court proposes to act under the proviso to sub-sec. There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the presence of a witness, obviously the party can produce such witness on the date of hearing and the Court cannot decline to examine the witness unless the Court proposes to act under the proviso to sub-sec. (1) of Section 87 of the 1951 Act' which enables the Court for reasons to be recorded in writing, to refuse to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. It, therefore, unquestionably transpires that the obligation to supply the list of witnesses within the time prescribed under sub- rule (1) of Rule 1 of Order XVI is in respect of witnesses to procure whose presence the assistance of the Court is necessary. And this ought to be so because the Court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the Court. This not only explains the necessity of setting out the names of witnesses in the list but also the gist of evidence of each witness. If mere omission to mention the name of a witness in the list envisaged by sub-rule (1) of Rule 1 of Order XVI would enable the Court to decline to examine such witness, Rule 1A of Order XVI would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub-rule (1) and who can be produced without the assistance of the Court. Viewed from this angle, Rule 1A becomes wholly redundant. Viewed from this angle, Rule 1A becomes wholly redundant. If it is obligatory upon the party to mention the names of all witnesses irrespective of the fact whether some or all of them are to be summoned and even the names of those whom the party desires to produce without the assistance of the Court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1A would have given a clear legislative exposition in that behalf and the marginal note of Rule 1A clearly negatives this suggestion. Marginal note of Rule 1A reads as 'Production of witnesses without summons and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1. If is was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub-rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under Rule 1. Rule 1A of Order XVI clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not. It was, however, contended that Rule 1A is subject to sub-rule (3) of Rule 1 and therefore, the Court must ascertain how far sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1A. There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1A of Order XVI. It was, however, contended that Rule 1A is subject to sub-rule (3) of Rule 1 and therefore, the Court must ascertain how far sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1A. There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce. him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations." 14. Sri Janardhan Rao placed strong reliance on the decision of the Division Bench of this Court in Sunder v. Mohd Ismail5 wherein the learned Division Bench at para 12 observed as under: "We have already noticed the facts in detail leading to the filing of the application by the petitioner under Order XVI Rule 6 read with Section 151 of the Code of Civil Procedure. The learned counsel for the petitioner reiterated the same contention before us that once an application is filed to summon to produce a document, the same is required to be ordered by the trial Court without entering into any debate as to the relevancy or otherwise of the summoned document. We are unable to accede to the submission made by the learned counsel for the petitioner. The acceptance of such a contention, in our considered opinion, would convert the judicial forum of a Court of law into a post office. We are unable to accede to the submission made by the learned counsel for the petitioner. The acceptance of such a contention, in our considered opinion, would convert the judicial forum of a Court of law into a post office. The Court while dealing with an application filed under Order XVI Rule 6 of the Code of Civil Procedure is required to satisfy itself that the application was a bona fide one and not a vexatious one granting of which would result in abuse of process of the Court. The Court in exercise of its inherent jurisdiction is entitled to take all the relevant facts and circumstances and if it is satisfied that the application has been filed only to protract the proceedings and the ordering of which may result in serious injustice, is entitled to dismiss the application. A plain reading of Order XVI Rule 6 does not suggest that the application is required to be ordered automatically without considering the bona fides of the application. The learned counsel relied upon the expression used in Rule 6 Order XVI "any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced", in support of his submission that the compliance is an automatic one. The construction suggested by the learned counsel for the petitioner is not acceptable for the simple reason that Rule 6 declares that the person who is summoned to produce a document without being summoned to give any evidence is entitled to produce a document without being personally present and such production shall be deemed to have complied with the summons issued by the Court requiring production of the document. Nothing beyond that. There is no provision brought to our notice, which compels any Court to order an application automatically and summon the document whenever sought for by any party before the Court." 15. In D.Ram Mohan Rao v. Ms.Sridevi Hotels Pvt. Ltd.,6 a learned Judge of this Court while dealing with Order 16 Rule 6 of the Code observed "the provision enables the Court only to summon any person to produce a document without being summoned to give evidence. A party to suit cannot himself invoke the said provision to summon production of such document." 16. A party to suit cannot himself invoke the said provision to summon production of such document." 16. Certain submissions were made relating to the aspect whether when an application had been filed praying for a direction to a person to produce the documents, such person necessarily should be shown in the list of witnesses under Order 16 Rule 1 of the Code. 17. It may be when the request is made to issue summons for the simple purpose of production of document alone and such party producing the document may be examined as a witness, may not be examined as a witness and it will be only for the purpose of simple production of document before the court. 18. Certain further submissions were made whether Order 16 Rule 6 of the Code to be read along with Order 16 Rule 1 of the Code. It is needless to say that the provisions are to be harmoniously construed and depending upon the facts and circumstances of a particular given case, this question may have to be decided. 19. Suffice it to say that in the present case the application was dismissed no doubt on the ground of non-showing of the Chit Registrar in the list of witnesses. It appears no list had been filed. Even if this ground is not sustainable, the other ground recorded by the learned Additional Senior Civil Judge, Eluru is that the revision petitioner has knowledge about all these proceedings and in fact in the criminal proceeding the revision petitioner obtained certified copies of these documents. It is also pertinent to note that even if P.W.1 had not produced any documents, P.W.1 may be taking a risk and in the absence of proof, the plaintiff ultimately may be unsuccessful also. 20. On appreciation of the conduct of parties, this Court is satisfied that the application filed by the revision petitioner is not a bona fide one at all and in the light of the same the revision petition being devoid of merit the same shall stand dismissed. 21. The revision petition is accordingly dismissed. No order as to costs.