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2014 DIGILAW 257 (HP)

Beero Devi v. Bihari Lal

2014-03-25

RAJIV SHARMA

body2014
JUDGMENT Justice Rajiv Sharma, Judge This revision petition is directed against the order dated 26.10.2013 passed by the Civil Judge, Junior Division, Court No.2, Dehra, District Kangra. 2.“Key facts” necessary for the adjudication of this petition are that respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit against the petitioner-defendant and other defendants in the court of Civil Judge (Junior Division), Court No.2, Dehra. Petitioner has filed the written statement. Plaintiff led his evidence. Thereafter, defendant was granted an opportunity to lead her evidence. Evidence of the defendant was closed on 21.2.2013. Defendant filed Civil Revision No.68 of 2013 against the order dated 21.2.2013. Revision Petition was allowed by this Court on 8.4.2013. Order dated 21.2.2013 was set aside. Direction was issued to the petitioner to appear before the learned trial court on 24.4.20 13 and take further steps, if any, for summoning her witnesses mentioned in the application dated 18.2.2013, for a date to be fixed by the trial court. In addition to summons, Dasti summons were also made available to the petitioner on usual terms for taking effective steps to serve them to avoid delay in disposing of the case. Defendant was directed to file P.F. within three days by the trial court and defendant’s witnesses were ordered to be summoned for 8.5.2013 vide order dated 27.4.2013. Dasti summons were also ordered to be issued. On 8.5.2013, Presiding Officer was transferred. Matter was ordered to be put up for proper order on 28.5.2013. On 28.5.2013, learned trial court observed that despite order dated 27.4.2013; no steps were taken by the petitioner. Petitioner was granted last opportunity to produce her evidence on self responsibility on 19.6.2013. She was granted liberty to apply for Dasti summons on usual terms. It was also made clear vide order dated 28.5.20 13 that on the next date, her evidence shall be recorded only when cost of ‘ 5,000/- is paid. On 19.6.20 13, learned Presiding Officer was on training. Matter came up before the trial court on 24.7.20 13 and the matter was ordered to be listed on 17.9.2013. Steps were ordered to be taken within 15 days. Last chance was given to the petitioner. On 17.9.20 13, statements of three DWs, including petitioner, was recorded. Matter was ordered to be listed on 25.10.2013. On 25.10.2013 (wrongly mentioned as 26.10.2013) two DWs were present. Steps were ordered to be taken within 15 days. Last chance was given to the petitioner. On 17.9.20 13, statements of three DWs, including petitioner, was recorded. Matter was ordered to be listed on 25.10.2013. On 25.10.2013 (wrongly mentioned as 26.10.2013) two DWs were present. They explained to the court that they have not brought the requisitioned record. DW Dilip Chand, Sub Divisional Kanungo, explained that the record, which was requisitioned, was not available in the Tehsil Office. He was served in the capacity of employee of the office of S.D.M., Dehra. The number of mutation was also wrongly stated. Sh. Harnam Singh, Secretary, Gram Panchayat, deposed that the record requisitioned from his office was not available as the payments of the house tax have been made to another Gram Panchayat, which was carved out from this Gram Panchayat in the year 1984. DWs Dilip Chand and Harnam Singh were discharged. 3.It is evident from the facts enumerated hereinabove that petitioner has already been granted 18 opportunities before 21.2.2013 to lead her evidence. Last opportunity was granted by this Court vide order dated 28.5.20 13. Despite that petitioner has not taken effective steps, as is evident from order dated 24.7.2013. It was the responsibility of the petitioner to correctly state in the application what record was to be produced by the officer/official. DW Dilip Chand has stated before the trial court that number of mutation sought to be proved has wrongly been quoted. Defendant cannot be permitted to take advantage of her own wrong. Civil Suit was instituted by the plaintiff in the court of Civil Judge (Junior Division), Court No.-II, Dehra in the year 2005. It has also come in the order dated 25.10.2013 (wrongly mentioned as 26.10.2013) that petitioner has twice summoned wrong witnesses. The Court is of the considered view that defendant is delaying proceedings. This Court has earlier shown indulgence to the petitioner while disposing of Civil Revision No.68 of 2013 on 8.4.2013. This Court cannot show repeated indulgence to the petitioner, who has not been diligent in pursuing the proceedings before the Court. There is neither any illegality nor any perversity in the order dated 25.10.2013 (wrongly mentioned as 26.10.2013) passed by the learned Civil Judge (Junior Division), Court No.2, Dehra. 4. This Court cannot show repeated indulgence to the petitioner, who has not been diligent in pursuing the proceedings before the Court. There is neither any illegality nor any perversity in the order dated 25.10.2013 (wrongly mentioned as 26.10.2013) passed by the learned Civil Judge (Junior Division), Court No.2, Dehra. 4. Learned Single Judge of Punjab and Haryana High Court in Joint Hindu Family Bhagwan Dass, Bagirath Lal vs. Ram Payara alias Piare Lal and another, 1973 PLJ 553 has held that when the party has committed several defaults and was granted the last opportunity to produce witnesses himself was not entitled to further aid of court in summoning witnesses. Learned Single Judge has held as under: “3. As is apparent from the resume of the various orders, reproduced above, prior to 9.6.1972 the plaintiff had committed defaults and he was granted an opportunity to produce his witnesses himself. He was, therefore, not entitled, after committing so many defaults, to the further aid of the Court in summoning the witnesses. Instead of producing the witnesses on 29th June, 1972, in compliance with the previous orders of the Court, the plaintiff moved an application in the Court of the District Judge for transfer of the case. The grounds of revision, as stated, are not based on sound factual premises. It is further wrongly stated in those grounds that all the material witnesses with regard to the promotes have not been examined Sant Ram, Gian Chand and Bhikha Ram have been examined. Sant Ram and Gian Chand have not supported the plaintiff.” 5. Learned Single Judge of Jammu and Kashmir High Court in Yashpal Sawhney vs M/s Gandotra Traders and others, AIR 1995 Jammu and Kashmir 32 has explained succinctly the ambit of order 16 rule 1 of the Code of Civil Procedure as under: “7. Order 16, Rule 1 does not lay-out the number of witnesses that a party in a suit can produce. That makes it clear that the legislature left this field to the courts of law who are seized of the matter in which witnesses are proposed to be examined. A question arises as to whether the legislature can mean, and the courts can allow as many witnesses to be called by the court as a litigant chooses to. That makes it clear that the legislature left this field to the courts of law who are seized of the matter in which witnesses are proposed to be examined. A question arises as to whether the legislature can mean, and the courts can allow as many witnesses to be called by the court as a litigant chooses to. In my opinion if the answer is yes then courts will be put at the mercy of litigants and the chain of litigation will never end. If the answer is yes, then in a case like this, even if the defendant-respondent would like to summon numberless witnesses, no body can stop him. That means a civil suit cannot normally be decided during the lifetime of the suiter; That never can be the policy of laws. The first duty cast upon the courts is to control the proceedings. We with the advancement of our country and the growing complexities in our socio-economic pattern, have to address ourselves to the requirement of the time. Our law has to be real and meaningful. Courts have not only to dispense justice but do the same in a substantial manner. The growing concept of substantial justice is a laudable feature of our judicial system. If that be so then in every case when an application is made in terms of Order 16, Rule 1, C.P.C. court has to apply its mind and restrict the number of witnesses to an extent which should cater to the requirement of the case. The approach of the court should neither defeat the ends of justice nor cause undue delay in litigation. The court should not leave the number to the whims and fancies of the party producing the witnesses. Because a party interested in causing delay in a suit shall in that case be granted a premium for misusing the law of procedure. In determining number of witnesses a court should in my opinion, take into account the following guidelines :—(a) Nature of the litigation; (b) Number of issues required to be proved; (c) Nature of the issues. (d) 7 The fact as to on whom has the onus been laid. (e) The speficied purpose for which a particular witness is required to be produced. (A) In order to control the proceedings the court, in the first instance, has to take into account the nature of the proceedings. (d) 7 The fact as to on whom has the onus been laid. (e) The speficied purpose for which a particular witness is required to be produced. (A) In order to control the proceedings the court, in the first instance, has to take into account the nature of the proceedings. In a matrimonial case or in a suit for eviction or any other like matter, if, as already observed, the choice of number of witnesses is left to a litigant then the court will be abdicating its legitimate obligations. In a case like the one in hand it will always be the endeavour of the defendant to protract litigation. He should not be allowed to do so by aimlessly furnishing an unending list of witnesses who belong to far-flung areas. If that is done then these witnesses under the prevailing circumstances cannot be served for years together. Their examination by the court will be impossible for years to come. In that way the basis of the suit shall be knocked out.(B) The second consideration will be as to how many issues are required to be proved. This may distinctify one matter from the other. In a case where parties are at variance on a number of issues, probably number of witnesses to be examined may be larger than in a case where number of issues is limited.(C) Third consideration is as to what is the nature of the issues. In some cases the issues may be complicated. There the number of witnesses shall invariably be larger than in a case where the issues are simple. (D) The fourth consideration is as to upon whom is the onus placed by the court. The number of witnesses to be produced by a party, upon whom burden of proof has been placed may be larger than the party who has only to lead evidence in rebuttal. The last but not the least of the considerations is that a party making an application under Order 16, Rule 1 and desirous of obtaining sommons for a person shall, in his application, state the purpose for which the witness is proposed to be summoned. Taking a que from the words used in Order 16, Rule 1(2), C.P.C. it will be pertinent to observe that the same relate to singularity of the noun ‘witness’ or ‘person’. The words used are “for the attendance of any person”. Taking a que from the words used in Order 16, Rule 1(2), C.P.C. it will be pertinent to observe that the same relate to singularity of the noun ‘witness’ or ‘person’. The words used are “for the attendance of any person”. The grammer of the sub-rule suggests that against every person supposed to be called as a witness, the purpose of his production should be shown. Not that a long list of witness will be detailed out after stating that some questions are to be proved. Sub-rule (2) has to be read with sub-rule (1) in a conjective manner, where two purposes of calling witnesses are contemplated. These purposes are giving evidence or producing documents. Reading Sub-rules (1) and (2) together it will be safe to hold that against every witness, the party proposing to call that witness has to indicate as to for what purpose is he proposed to be called. This provision of law makes room for a prior information of the witness to come prepared for making deposition in the court or producing documents. 8.Code of Civil Procedure has been revolutionised by bringing in drastic amendment in the procedure, One of the improvements made is in respect of seeking assistance of the court in summoning witnesses. The earlier code left it for the parties to obtain summon after filing an application, provided the party making such application would within a period specified by the court pay the expenses for the witnesses. 9.In the amended Code, the addition of furnishing a list of witnesses within the stipulated time has deliberatedly been made. The party seeking to produce a witness is also required to specify the purpose for which the witness is proposed to be produced. Thus detailing out of a purpose is a necessary requirement and in absence of that the court will be within its limits to disallow summoning of that witness.” 6. Learned Single Judge of Madras High Court in Sri Aurobindo Ashram Trust and another vs. Kamal Dora, AIR 2000 Madras 494 has held that a party who seeks for a prayer to the Court to issue summons to a witness must reveal to the court the purpose for which the witness is proposed to be summoned. Learned Single Judge has held as under: “9. Learned Single Judge has held as under: “9. So, the legal position is that a party who seeks for a prayer to the Court to issue summons to a witness, must reveal to the Court the purpose for which the witness is proposed to be summoned. Once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in cases where objections are raised, the bona fides of the request has to be looked into and appropriate orders passed.” 7. Accordingly, there is no merit in the petition and the same is dismissed, so also the pending application(s), if any. Interim order dated 16.12.2013 is vacated. Parties are directed to appear before the learned Civil Judge (Junior Division), Court No.2, Dehra on 9.4.2014. Learned Civil Judge is directed to decide the Civil Suit No.135/11/05 within a period of four weeks after the receipt of this order. No costs.