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2013 DIGILAW 2338 (BOM)

Atchut Upendra Raikar v. Anand Upendra Raikar

2013-11-18

U.V.BAKRE

body2013
Judgment : Heard Mr. Sardessai, learned Counsel appearing on behalf of the appellant in both the appeals and Mr. Godinho, learned Counsel appearing on behalf of respondents in both the appeals. 2. These Second Appeals are being disposed of by common judgment, as the facts are identical and they involve the same question of law. 3. Admit on the following substantial question of law: (a) Whether the Trial Court committed illegality in closing the evidence of the plaintiff without ensuring production of the necessary documents by the Income Tax Officer, thus failing to act in terms of the Order XVI of the Code of Civil Procedure, 1908, more particularly Rule 10 thereof, despite the directions of this Court in Writ Petition No. 243/2010 and other connected petitions ? 4. Learned Counsel appearing on behalf of respondents waives service of notice after admission. 5. Heard forthwith with the consent of the learned Counsel for the parties. 6. The appellant is the plaintiff and the respondents are the defendants in Special Civil Suit No.76/1999/III(old) : Regular Civil Suit No.309/2010/III (new) and in Special Suit No. 75/1999/III (Old) : Regular Civil suit No. 305/2010/III (New), respectively. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said suit. 7. The plaintiff had filed the said suits for declaration that the Deed of Retirement dated 01/04/1994, is null and void. The defendant no. 3, who was holding Power of Attorney on behalf of the plaintiff, had executed the said deed of retirement thereby leading to the retirement of the plaintiff from the said Firm of which the plaintiff and the defendants were the partners. The plaintiff had also prayed for dissolution of the Partnership, for permanent injunction restraining the defendants from alienating or creating any third party rights in the shop belonging to the Partnership Firm, besides the other reliefs. 8. The defendants filed their written statement in both the suits thereby denying the averments made by the plaintiff. The defendants alleged that the plaintiff had retired from the Firm with effect from 01/04/1994, on account of the Deed of Retirement dated 01/04/1994. 9. In the said suits, the plaintiff had filed an application dated 20/10/2009 seeking direction to the Income Tax Department to depute some responsible official to produce the balance sheet of the Firm for the financial years 1993-1994 to 2004-2005. 9. In the said suits, the plaintiff had filed an application dated 20/10/2009 seeking direction to the Income Tax Department to depute some responsible official to produce the balance sheet of the Firm for the financial years 1993-1994 to 2004-2005. The said application was objected to by the defendants and by order dated 28/01/2010, the learned Trial Judge dismissed the said application. Aggrieved by the said order of dismissal, the plaintiff filed Writ Petitions before this Court and by judgment dated 25/08/2010, the said petitions were allowed. The impugned order dated 28/01/2010 passed by the Trial Judge was quashed and set aside and the said applications dated 20/10/2009 filed by the plaintiff, in both the suits, were allowed. The learned Trial Judge was directed to issue necessary directions to the Income Tax Department to produce the balance sheets of the Firms which were sought to the produced by the plaintiff. Accordingly, the Trial Judge issued notice to the Income Tax Department, in terms of the Judgment dated 25/8/2010 passed by this Court. On 02/11/2010, the Income Tax Inspector was present but he had not brought the complete information, as required. On the next date i.e. on 25/11/2010, the said witness remained absent. Again on 20/01/2011 and on 03/02/2011, the Trial Judge ordered to issue notice to the Income Tax Department, as per the judgment dated 25/08/2010 passed by this Court. In spite the notice dated 27/01/2011, having been served on the Department, the Income Tax Officer remained absent on the returnable date i. e. 03/02/2011. The plaintiff was thereafter directed to take steps. By application dated 08/02/2011, the plaintiff had applied for notice to be issued to the Income Tax Department. The said summons dated 14/02/2011 was duly served. However, on 18/02/2011, which was the returnable date, the Income Tax officer again remained absent. In the Roznama dated 18/02/2011, the learned Trial Judge observed that it is seen from the record that the plaintiff has been given enough opportunity to secure the presence of the Income Tax officer, in spite of which he could not secure the presence. Learned Trial Judge was pleased to close the evidence of the plaintiff in both the suits, since the cases were old. The matter was fixed for defence evidence. On 05/04/2011, the defendants also closed their evidence since the plaintiff had not led any evidence. 10. Learned Trial Judge was pleased to close the evidence of the plaintiff in both the suits, since the cases were old. The matter was fixed for defence evidence. On 05/04/2011, the defendants also closed their evidence since the plaintiff had not led any evidence. 10. Subsequently, by judgments and decrees dated 05/04/2011, both the suits of the plaintiff came to be dismissed since the plaintiff had failed to prove the issues which were required to be proved by him. 11. Aggrieved by the judgments and decrees dated 05/04/2011, of the Trial Court, the plaintiff approached the learned District Court, South Goa, Margao by filing Regular Civil Appeal No.198/2011/I and Regular Civil Appeal No. 178/2011/I, respectively. The plaintiff, in these appeals, specifically challenged the order of the Trial Judge, closing the plaintiff's evidence. By judgments and Decrees dated 09/08/2012, the learned District Judge-I, South Goa, Margao held that there was no illegality in the order dated 18/02/2011 passed by the Trial Judge thereby closing the evidence of the plaintiff and consequently, there was no error committed by the Trial Judge in dismissing the suits. The said appeals, thus, came to be dismissed. 12. Therefore, the plaintiff is before this Court in the aforesaid Second Appeals, having challenged the above Judgments and Decrees, passed by the lower Courts. 13. Learned Counsel appearing on behalf of the plaintiff submitted that this Court had given an opportunity to the plaintiff to summon the Income Tax officer in order to produce the relevant documents and accordingly, the plaintiff had taken the steps to secure his presence with the said documents and that though the said Income Tax officer was duly served with the notices, he had remained absent on 18/02/2011. He pointed out that on 18/02/2011, the Trial Court had actually received a letter from the Income Tax Officer, Margao along with the balance sheets as required. According to the learned Counsel for the plaintiff, in such circumstances, the learned Trial Judge ought to have followed the procedure as prescribed under Order XVI, Rule 10 of the Code of Civil Procedure. In this regard, the learned Counsel for the plaintiff has relied upon the judgment in the case of "Dilawarkhan Ahmedkhan Vs. Manubee Ahmed Khan and others" [2003(1) All MR 647]. In this regard, the learned Counsel for the plaintiff has relied upon the judgment in the case of "Dilawarkhan Ahmedkhan Vs. Manubee Ahmed Khan and others" [2003(1) All MR 647]. He, therefore, submitted that the orders closing the plaintiff's evidence are illegal and since the same have resulted in further illegality of dismissal of the suits, the impugned judgments and decrees are bound to be quashed and set aside and the case remanded to the Trial Judge for taking steps in accordance with Order XVI, Rule 10 of C.P.C. 14. On the other hand, Mr. Godinho, learned Counsel appearing on behalf of the defendants, submitted that admittedly, the suit was old one and that the plaintiff himself did not step into the witness box to prove that the Power of attorney dated 18/10/1991 was bad in law and that the deed of retirement was null and void. He further submitted that the plaintiff also could not secure the presence of his witnesses and, therefore, the Lower Courts have rightly rejected the suits. 15. I have gone through the material produced by the plaintiff on record and I have considered the submissions advanced by the learned Counsel for the parties and I have also gone through the relevant provisions of law and the citation relied upon by the plaintiff. 16. It is seen that since the balance sheets for the financial years 1993 to 2005, as per the applications dated 20/10/2009 were relevant, for proving the case of the plaintiff, and further since previously by order dated 03/02/2006, the Trial Court itself had allowed the application filed by the plaintiff seeking leave to produce the said balance sheets, this Court had given an opportunity to the plaintiff to examine the Income Tax officer with a direction to produce the same. It is seen from the records that in terms of the directions given by this Court by judgment dated 25/08/2010, the Trial Court had issued notices and subsequently, the plaintiff had taken appropriate steps to issue notice to the said Income Tax officer. It is further seen that the summons were duly served and the Income Tax officer forwarded the relevant balance sheets to the Trial Court. But the said Income Tax officer, for reasons not known, chose to remain absent. 17. Order XVI, Rule 10 of C.P.C. provides as under: “Order XVI, Rule10. It is further seen that the summons were duly served and the Income Tax officer forwarded the relevant balance sheets to the Trial Court. But the said Income Tax officer, for reasons not known, chose to remain absent. 17. Order XVI, Rule 10 of C.P.C. provides as under: “Order XVI, Rule10. - Procedure where witness fails to comply with summons – (1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court- (a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons. (2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it 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 on the outer door or other conspicuous part of the house in which he ordinarily resides. (3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, 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 to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12 : Provided that no Court of Small Causes shall make an order for the attachment of immovable property.” 18. Since the Trial Court had found reason to believe that the balance sheets were material, it had allowed the application filed by the plaintiff seeking leave to produce and rely upon the same. Since the Trial Court had found reason to believe that the balance sheets were material, it had allowed the application filed by the plaintiff seeking leave to produce and rely upon the same. This Court, in the Writ Petitions, had therefor quashed the orders dated 28/1/2010 and had allowed the applications dated 20/10/2009. The Income Tax Officer had remained absent without any lawful excuse. It is seen from the records that the learned Trial Judge has not complied with the provisions of Order XVI, Rule 10 of C.P.C. and the Lower Courts have not given any reason as to why the said procedure was not required to be followed. 19. In the case of “Dilawar Khan Ahmad Khan” (supra), the learned Single Judge of the Aurangabad Bench of this Court has, inter alia, held thus: “6. The issue before this Court is not whether the Court has/has not powers to use coercive methods for procuring the presence of witnesses. The question that is before this Court is whether the trial Court ought to have issued summonses second time for procuring the presence of witnesses, when they were absent in spite of service. According to Shri Challani, since the witnesses were once served with summons, plaintiff ought to have applied for appropriate process under Order XVI, Rule 10(2) or (3), Civil Procedure Code and not for repeated summonses. In the absence of any such application, according to Shri Challani, the trial Court was justified in rejecting the application to repeat summonses and closing the evidence of plaintiff. In the light of judicial pronouncements in the cases of M/s. National Rice and Dal Mills and M/s. Sohan Singh (supra), the aforesaid proposition of Shri Challani is unsustainable. If plaintiff did not apply for coercive method, the Court could not have taken liberty to close the evidence of plaintiff, without taking appropriate steps for securing presence of the witnesses as prayed by plaintiff. This is because, by issuing the summons to the witnesses on earlier occasion, the Court has accepted the contention of plaintiff that evidence of those witnesses was necessary. Naturally, the only question that is required to be considered is whether the Court is prohibited from issuing summonses on second occasion to the same witnesses, who are served and absent, and is the Court obliged to proceed with coercive method, since witnesses are absent on single service. 8. Naturally, the only question that is required to be considered is whether the Court is prohibited from issuing summonses on second occasion to the same witnesses, who are served and absent, and is the Court obliged to proceed with coercive method, since witnesses are absent on single service. 8. It must be taken into account that the processes empowered by Rule 10, to some extent, are coercive processes and of penal consequences. Naturally, the Court is expected to be slow. The Court could have gone ahead with the coercive process only after satisfying itself that the witnesses have remained absent without lawful excess. 9. Taking into consideration Rule 10 in its totality, it is not possible to arrive at a conclusion that the Court is prevented from issuing the summons to the witnesses on second occasion, although he has been served and remained absent. To take a pragmatic view, it must be said that the single absence in spite of service, need not necessarily lead to an inference that the witness has failed to attend without lawful excuse. Contention of Shri Challani, Advocate to the effect that because the witnesses were served, there was no option but to proceed with the coercive method and therefore, the trial Court committed no error in rejecting the application for repeat summonses, therefore need not be sustained.” 20. In the circumstances above, the plaintiff had lost the opportunity of producing the material evidence on record. One of the issues in the suit was whether the plaintiff proves that the defendant no 3 obtained signature of the plaintiff on power of attorney dated 18/10/1991 by fraud. It was contended by the learned Counsel for the defendants that the same could have been proved only by the evidence of the plaintiff but the plaintiff himself did not chose to step into the witness box. The plaintiff had, in fact, filed affidavit-in-evidence on 06/04/2010 and had informed the Trial Court that he had challenged the orders dated 28/01/2010. It is, therefore, that the orders dated 18/02/2011, passed in both the suits, thereby closing the plaintiff's evidence, are arbitrary, perverse and erroneous and hence are liable to be set aside. The Trial Court ought to have followed the procedure envisaged in Order XVI, Rule 10 of C.P.C.. The said closure of the plaintiff's evidence formed the basis of the dismissal of the suits and appeals. The Trial Court ought to have followed the procedure envisaged in Order XVI, Rule 10 of C.P.C.. The said closure of the plaintiff's evidence formed the basis of the dismissal of the suits and appeals. Consequently, impugned judgments and orders of the lower Courts, are required to be quashed and set aside. The substantial question of law framed above is, therefore, answered in favour of the plaintiff. 21. In the result, the appeals are allowed. (a) The impugned judgments and Decrees of District Judge-I, South Goa, Margao, dated 09/08/2012, in Regular Civil Appeals No. 198/2011/I and 178/2011/I and of the III-Additional Civil Judge, S. D., Margao, dated 05/04/2011, in Special Civil Suit No. 76/1999/III: Regular Civil Suit No. 309/2010/III and Special Civil Suit No.75/1999/III: Regular Civil Suit No.305/2011, are quashed and set aside. (b) The orders dated 18/02/2011 passed by the Trial Judge, thereby closing the plaintiff's evidence is also quashed and set aside. (c) The matters are remanded to the Trial Judge to take appropriate steps under Order XVI of C.P.C., more particularly Rule 10 thereof, for securing the presence of the said Income Tax Officer and to proceed further with the suits from the stage at which the plaintiff's evidence was closed. (d) Parties to appear before the Trial Court on 15/01/2014 at 10.00 a.m. 22. The appeals stand disposed of accordingly.