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2010 DIGILAW 1083 (CAL)

K. Jayaraj v. Moses Pandian

2010-08-27

S.K.MUKHERJEE

body2010
JUDGMENT Subhro Kamal Mukherjee, J. 1. THIS is a revisional application under Article 227 of the Constitution of India against order dated July 2, 2010 passed by the learned Civil Judge (Junior Division), First Court at Port Blair, in Other Suit No.49 of 2007. By the order impugned the learned trial judge rejected an application filed by the plaintiff under Order 16, rule 21 of the Code of Civil Procedure, inter alia, for leave to examine the defendant no.2 as a witness of the plaintiff. THIS revisional application arises out of a suit for eviction and recovery of arrears of rent. The plaintiff contended that the original tenant, the defendant no.1, left the islands after inducting the defendant no.2 as an unauthorized sub-tenant in the suit premises. The defendant no.2 was running a business under the name and style Shoranur Keraleeya Ayurveda Samajam Hospital with massage centre. 2. BOTH the defendants are contesting the suit by filing their written statements. They have, inter alia, denied the plaint case. The plaintiff in the said suit filed an application under Order 16, rule 21 of the Code of Civil Procedure seeking to examine the said defendant no.2 as a witness of the plaintiff, in substance, for production of the following documents:- (a) Certificate of Shoranur Keraleeya Ayurveda Samajam Hospital; (b) Certificate of CST registration bearing No.31165234; and (c) Approval of the Government of India being letter no.S15022/7/73-MC dated May 12, 1976. The defendant no.2 contested the said application by filing a written objection. In such written objection he categorically stated that he was not having any document as referred to in the said application filed by the plaintiff. The learned trial judge, as I have noted hereinabove, rejected the said application filed by the plaintiff. Order 16, rule 21 of the Code of Civil Procedure, as amended by this Court, runs as under:- 3. RULES as to witnesses to apply to parties summoned.- (1) When any party to a suit is required by any other party thereto to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as applicable. RULES as to witnesses to apply to parties summoned.- (1) When any party to a suit is required by any other party thereto to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as applicable. (2) When a party to a suit gives evidence on his own behalf, the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for traveling and other expenses to other witnesses in the case of similar standing. It appears that rule 21 of Order 16 of the Code of Civil Procedure contemplates that the provision as to witness shall apply to any party if he is required to give evidence or to produce documents by the other side. Accordingly, a party and a witness are not to be differentiated. The practice of issuing summons to other side to appear as the witness is inconsistent with the practice generally prevailing in courts. The practice of calling the other side is considered to be unhealthy practice and is, therefore, disapproved always. A party to the suit has not been conferred any specific right to summon the other side as a witness to be examined on his side. Therefore, as a matter of right the plaintiff cannot have the defendant examined as witness. 4. IN the instant case, the plaintiff has filed this suit for recovery of possession on the ground of subletting. The right to relief is denied by the defendants in their written statements. It is for the plaintiff to establish the ground for eviction, which would entitle the plaintiff to a decree for eviction. It is for the plaintiff to establish the plaint case by adducing own evidence and relying upon any adverse inference that may be available to the plaintiff in case the defendants choose not to appear before the court. IN substance, the plaintiff wants the defendant to appear before the court to disclose certain documents. IN the written objection the defendant no. 2 categorically stated that the defendant no.1 was not having any document as referred to in the application under Order 16, rule 21 of the Code of Civil Procedure filed by the plaintiff. IN substance, the plaintiff wants the defendant to appear before the court to disclose certain documents. IN the written objection the defendant no. 2 categorically stated that the defendant no.1 was not having any document as referred to in the application under Order 16, rule 21 of the Code of Civil Procedure filed by the plaintiff. On the materials now available, I see no justification in interfering with the order passed by the trial court to summon the defendant no.2 as the witness on behalf of the plaintiff. I hold that the prayer of the plaintiff to summon and examine the other side is abuse of the process of court and the learned trial judge did not commit any material irregularity in the exercise of his jurisdiction in rejecting the prayer of the plaintiff. The revisional application is, therefore, rejected. The order impugned in this revisional application is affirmed. The learned judge is requested to dispose of the suit as expeditiously as possible preferably by March, 2011. The learned judge is also requested not to grant any unnecessary adjournment to either of the parties while disposing of the suit. I, however, make no order as to costs in this application.