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2011 DIGILAW 552 (GAU)

Krishna Kanta Paul v. Nanda Dulal Paul

2011-06-28

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The instant civil revision is filed by the Petitioner under Article 227 of the Constitution for setting aside the order, dated 8.4.2011, passed by the learned Civil Judge (Sr. Division), Court No. 1, West Tripura, Agartala in Title Suit No. 7 of 2008 whereby and where under the learned Civil Judge directed the Advocate of the Plaintiff Petitioner to file examination in chief on affidavit supplying copy to other side so that they can be cross-examined by the Defendants. 2. Heard Mr. D Chakraborty, learned Counsel for the Petitioner and Mr. A. Roy, learned Counsel appearing for the Respondents. 3. The pleaded case of the Plaintiff Petitioner is that the Petitioner instituted the Title Suit No. 7 of 2008 for declaration that his deceased wife Purnima Rani Paul was the Benamidar of the suit property described in the schedule of the plaint and thus the Petitioner is the real owner of the suit property and he has right, title and interest over the said suit property. 4. The Respondents filed their written statement in response to the plaint. Thereafter the Petitioner has filed his examination in chief by affidavit and filed an application for issuing summons on the witnesses. Accordingly, the Court below issued summons upon seven witnesses vide order dated 1.12.2009. 5. Thereafter, the Petitioner was present before the Court below on 1.2.2010 for cross-examination by the Defendants i.e. the Respondents herein, and on the same date, four witnesses out of seven witnesses as summoned by the court appeared by way of filing their Hazira, but the Defendants Respondents sought adjournment which was allowed and the next date was fixed on 20.3.2010 for cross-examination of the Petitioner and recording evidence of other witnesses. 6. As the Presiding Officer was absent, the cross-examination of the Petitioner and the recording of the evidence of the witnesses could not be done on 20.3.2010 and the case was fixed on 1.4.2011. 7. The Plaintiff Petitioner along with his three summoned witnesses was present on 1.4.2011. On that day, though the Petitioner was cross-examined by the defence, but the learned Court below did not allow recording the evidence of the summoned witnesses of the Petitioner for absence of examination in chief by affidavit. 8. 7. The Plaintiff Petitioner along with his three summoned witnesses was present on 1.4.2011. On that day, though the Petitioner was cross-examined by the defence, but the learned Court below did not allow recording the evidence of the summoned witnesses of the Petitioner for absence of examination in chief by affidavit. 8. Again the case was fixed on 8.4.2011 for hearing on the question as to whether the learned Court below had jurisdiction to record the evidence of the summoned witnesses without examination in chief and ultimately on 8.4.2011 passed the impugned order. 9. Mr. Chakraborty, learned Counsel while urging for setting aside the impugned order dated 8.4.2011 would contend that the learned Court below has mis-construed the provisions laid down in Salem Advocate Bar Assn. v. Union of India (2003) 1 SCC 49 , particularly, he referred to Para-17 of the said Report, wherein the Apex Court specifically noted that Order 16 Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in the court for recording their evidence and Rule 1A of the said Rule, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence or to produce documents. 10. The Apex Court also observed that a conjoint reading of Order XVI and Order XVIII authorize the Court to examine the witnesses produce by the party in a suit even without examination in chief. He further contended that always the witness may not be under control of the party who wants to rely upon his evidence and that witnesses may have to be summoned through the Court. 11. In the instant case, when the Court summoned the witnesses and they appeared, it was the duty of the Court to examine them, even without examination in chief. The direction to the learned Advocate of the Plaintiff Petitioner is, in fact, without the jurisdiction, as an Advocate is not bound to produce the witnesses, at best, the Court can direct the Plaintiff Petitioner to produce the witnesses. 12. Mr. The direction to the learned Advocate of the Plaintiff Petitioner is, in fact, without the jurisdiction, as an Advocate is not bound to produce the witnesses, at best, the Court can direct the Plaintiff Petitioner to produce the witnesses. 12. Mr. Roy learned Counsel for the Defendants-Respondents in his usual fairness submits that he has no objection if the impugned order, dated 8.4.2011, is set aside and the Court below is directed to examine the witnesses who were summoned by it subject to their appearance without filing the examination in chief by affidavit. 13. This Court has gone through the decision of the Apex Court in Salem Advocate Bar Assn (supra). On scrutiny of Order XVI Rule 1 Code of Civil Procedure read with Order XVIII Rule 4 Code of Civil Procedrue, this Court is of considered opinion that where the witness is not under the control of the party who wants to examine such a witness, then the recourse is Order XVI Rule 1Code of Civil Procedure. If the party applied for summoning the witnesses as mentioned in the list and if ultimately the court summons them, it is the duty of the Court who has to ask a witness either to file an affidavit by himself or the said witness can be examined by the Court itself, being rendering justice to a justice seeker is the paramount consideration and for providing justice when the present of a witness is necessary, according to this Court, then it is the duty of the Court alone to see that the witness is examined. 14. It is also settled law that if a witness after receiving the summon does not appear before the Court, then the Court can take action against the said witness but whether the summoned witness would depose in the line of either of the parties is up to the witness. Court cannot force the witness to make any statement before it against his will. 15. Therefore, according to this Court, the direction of the Court below to the learned Advocate of the Plaintiff to file examination in chief on affidavit supplying copy to other side is not only unreasonable and unfair but also in excess of jurisdiction. Therefore, the same is required to be set aside. 16. 15. Therefore, according to this Court, the direction of the Court below to the learned Advocate of the Plaintiff to file examination in chief on affidavit supplying copy to other side is not only unreasonable and unfair but also in excess of jurisdiction. Therefore, the same is required to be set aside. 16. In the result, the impugned order dated 8.4.2011 passed by the learned Civil Judge in Title Suit No. 7 of 2008 is set aside. 17. The learned Court below is directed to record the evidence of the summoned witnesses in accordance with law even in absence of examination in chief on affidavit and also allow the defence to cross-examine those witnesses in the interest of justice. 18. With the aforesaid order, the revision application is allowed. Application allowed