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2009 DIGILAW 829 (RAJ)

Sandeep Sharma v. The Civil Judge (JD), Alwar

2009-03-23

DALIP SINGH

body2009
JUDGMENT 1. - Heard learned counsel for the parties. 2. The matter comes up on the application bearing No.6407 submitted by the respondent for vacation of ex parte stay order dated 8.12.2008. 3. The submission of the learned counsel for the parties is that since the submissions on the merits of the writ petition as well as on the application are identical the writ petition itself may be heard and decided. Accordingly the writ petition itself is being heard finally. 4. The petitioner has filed this writ petition against the order dated 15.11.2008 by which the objections submitted by the petitioner against the examination and recording of the statement of two witnesses of the plaintiff whose names were not disclosed in the list of witnesses were rejected and as per the contention of the learned counsel for the petitioner were summoned by the learned trial court without any application having been filed by the plaintiff in this behalf. 5. The learned counsel for the plaintiff respondent submits that in the list of witnesses it is true that the names of the two witnesses who were summoned namely Niranjan Kumar and Madan Lal did not find mention however at serial Nos. 7 and 8, the plaintiff had categorically stated that the plaintiff wishes to examine the concerning clerk of the Sub Registrar office at Alwar and concerning clerk with record of the UIT, Alwar. The learned counsel for the plaintiff also drew the attention of the court to the fact that so far as the production of the record is concerned the learned trial court vide its order dated 1.9.2006 had permitted the plaintiff for summoning the record from the concerned department and so the learned trial court allowed the plaintiff to summon the two witnesses with the record. 6. I have considered the rival submissions and I find that in the instant case while passing the order dated 1.9.2006 the learned trial court had granted the permission to the plaintiff for summoning the record but the said order was a conditional order. The said order reads as under : " vr% bl lEcU/k esa vkns'k fn;k tkrk gS fd oknh pkgs x;s nLrkostksa dh izekf.kr izfr gsrq ;w0vkbZ0Vh0 esa vkosnu dj is'k djsA ;fn ;w0vkbZ0Vh0 }kjk izekf.kr izfr nsus esa dksrkgh cjrh tkrh gS rHkh i=koyh eaxk;s tkus ij fopkj fd;k tk;sxkA " 7. The said order reads as under : " vr% bl lEcU/k esa vkns'k fn;k tkrk gS fd oknh pkgs x;s nLrkostksa dh izekf.kr izfr gsrq ;w0vkbZ0Vh0 esa vkosnu dj is'k djsA ;fn ;w0vkbZ0Vh0 }kjk izekf.kr izfr nsus esa dksrkgh cjrh tkrh gS rHkh i=koyh eaxk;s tkus ij fopkj fd;k tk;sxkA " 7. A perusal of the above order goes to show that the learned trial court had directed the plaintiff respondent to obtain the certified copies of the documents and produce the same in court. Only in the event if the UIT, Alwar refused to grant or issue the certified copies then in that event the learned trial court had directed that it would consider the request for summoning the record. 8. Learned counsel for the plaintiff respondent submits that while the plaintiff had applied for the certified copies but the same were not issued by the UIT to the plaintiff respondent and therefore the plaintiff filed a "fard talbana" i.e. a covering letter in a printed form on 23.7.2008 enumerated the names of 3 witnesses whom the plaintiff sought to be summoned in support of his case. The copy of the fard talbana which was produced before the court at the time of hearing and the copy of the list of witnesses has been placed on record of this file. Three persons have been named in the list are as follows : 1.J.P. Saini, Naksa Navees 2. Karamchari DIG Stamp 3. Karamchari, UIT 9. A perusal of the above goes to show that the no names of the employee of the office of DIG Stamp or of the UIT whom the plaintiff sought to summon were disclosed in the said "fard talbana." Further on a comparison of the names in the list of witnesses dated 20.4.2004 and the list of witnesses to be summoned in the fard Talbana which was filed by the plaintiff on 23.7.2008, on which the learned counsel for the plaintiff respondent sought to rely upon, the persons named at serial No.7 is the "(7) Sambandhit Babu Up Panjiyak Karyalaya and at Sr.No.(8) Nagar Vikas Nyas me Sambandhit Karamchari May Record." 10. From a perusal of the above proceedings and procedure adopted by the learned trial court it seems that the provisions of Order 16, Rule 1 have been given a total go-bye by the learned trial court. From a perusal of the above proceedings and procedure adopted by the learned trial court it seems that the provisions of Order 16, Rule 1 have been given a total go-bye by the learned trial court. Even the plaintiff failed to bring on record any facts by moving an application for summoning of the record in the light of the order dated 1.9.2006 as it was contended by the learned counsel for the plaintiff that the office of the UIT had refused to issue the certified copies of the documents which had been permitted by the court in its order dated 1.9.2006. The plaintiff merely filed the fard talbana for summoning the witnesses and the learned trial court issued the summons. 11. It may be stated that before the learned trial court the counsel appearing for the plaintiff did not move any application in the light of the order dated 1.9.2006 or under the provisions or Order 16 Rule 1 and sub-rule (2) seeking the permission from the court for summoning the witness stating reasons therefore sub rule (2) of order 16 reads as follows : "(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." 12. Admittedly no such application was filed by the plaintiff. The learned counsel for the plaintiff sought to rely upon the fard talbana to contend that the plaintiff had moved an application by way of "fard talbana" and the learned trial court had ordered for summons for the witnesses to be issued. 13. The said contention can not be accepted. There was no application from the side of the plaintiff enumerating the reasons as required by Order 16 Rule 1 (2) CPC and in the light of the earlier order dated 1.9.2006. Without going into the reasons the learned trial court could not have allowed the prayer for summoning the witnesses since there was no application and reason had been disclosed for allowing the summoning of the witnesses with the record as the court had permitted the plaintiff to obtain the certified copies of the document and produced the same in court under order dated 1.9.2006 quoted above. While it is true that the trial court had retained its jurisdiction under the aforesaid order to summon the witnesses with the record only in the event that it was proved before the court that the concerned department was not issuing the certified copies. There was no such material on record produced by the plaintiff by means of any application and therefore the learned trial court has committed a serious error of jurisdiction in summoning the witnesses merely on the filing of the fard talbana without a proper application disclosing the reason more particularly in view of the earlier order dated 1.9.2006 and the provision of Order 16 Rule 1 (2) CPC 14. It is also a fact admitted by both the learned counsel for the parties that no application under Order 16 Rule 1 Sub Rule (2) was submitted by the plaintiff for summoning the witnesses. 15. In that view of the matter the objections raised by the defendant petitioner deserves to be sustained and the impugned order passed by the learned trial court is set aside. The order summoning the witnesses is quashed. 16. This writ petition is accordingly disposed of as above.Order Summoning Witness Quashed - Writ Petition Disposed of Accordingly *******