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Himachal Pradesh High Court · body

2016 DIGILAW 112 (HP)

Chaman Lal v. Sunder Lal

2016-02-25

P.S.RANA

body2016
ORDER : 1. Present civil revision petition is filed against the order dated 19.7.2013 passed by learned Civil Judge (Junior Division) Mandi Himachal Pradesh whereby learned trial Court refused to examine Shri Shailesh Sharma Advocate as witness. Brief facts of the case 2. Sunder Lal non-revisionist filed application under Order 39 Rule 2-A of Code of Civil Procedure pleaded therein that revisionists have intentionally and voluntarily violated the interim order of Court dated 24.4.2004 passed in CMA No. 46-IV of 2014. Non-revisionist sought the relief that property of revisionists be attached and sold and revisionists be also detained in civil imprisonment. 3. Per contra response filed on behalf of revisionists pleaded therein that revisionists did not violate the order of Court as alleged and further pleaded that petition under Order 39 Rule 2-A CPC filed without any cause of action. 4. Learned trial Court as per pleadings of parties framed following issues on 14.9.2007:- 1. Whether revisionists have willfully disobeyed order dated 24.4.2004? OPA 2. Relief. 5. Thereafter learned trial Court listed the case for non-revisionist evidence. Learned trial Court closed the evidence of non-revisionist on 13.3.2013. Thereafter learned trial Court listed the case for revisionists evidence. Thereafter revisionists filed application for depositing TA and DM of witnesses of revisionists in which the name of Shailesh Kumar Advocate District Court Mandi was mentioned as witness. Learned trial Court directed Civil Nazir to deposit the TA and DM and thereafter TA and DM to the tune of Rs. 200/-(Rupees two hundred only) was deposited on 30.5.2015. Thereafter summon was issued to learned Advocate Shri Shailesh Kumar Sharma by learned trial Court. Sailesh Kumar Sharma learned Advocate District Court complex Mandi refused to accept the summon on the ground that he is Advocate for non-revisionist. Thereafter on dated 19.7.2013 Shri Sailesh Kumar learned Advocate was present before the trial Court but learned trial Court did not examine the witness on the ground that witness Shri Sailesh Kumar is counsel of non-revisionist. 6. Feeling aggrieved against the order dated 19.7.2013 present civil revision petition is filed. 7. Court heard learned Advocate appearing on behalf of revisionists and learned Advocate appearing on behalf of non-revisionist and Court also perused entire record carefully. 8. Following points arise for determination in civil revision petition:- 1. Whether civil revision is liable to be accepted as mentioned in memorandum of grounds of revision petition? 2. Relief. 7. Court heard learned Advocate appearing on behalf of revisionists and learned Advocate appearing on behalf of non-revisionist and Court also perused entire record carefully. 8. Following points arise for determination in civil revision petition:- 1. Whether civil revision is liable to be accepted as mentioned in memorandum of grounds of revision petition? 2. Relief. Findings upon point No. 1 with reasons 9. It is proved on record that revisionists want to examine learned Advocate Shailesh Sharma engaged by non-revisionist before learned trial Court in proceedings filed under Order 39 Rule 2-A CPC. It is well settled law that as per Order XVI of Code of Civil Procedure 1908 a party who intends to summon a witness should state the purpose for which the witness is proposed to be summoned. Court has carefully perused the application filed by revisionists for summoning learned Advocate namely Sailesh Kumar Sharma. In application revisionists did not mention the purpose for which they intend to examine learned Advocate Shailesh Sharma. However, in revision petition the revisionists have stated that revisionists intend to examine the learned Advocate Shailesh Sharma of non-revisionist for the limited purpose only i.e. to prove the pleadings filed in Court. 10. Court is of the opinion that pleadings signed and filed in Courts are not privileged professional communications under Section 126 of Indian Evidence Act 1872. Revisionists intend to prove only pleadings signed by learned Advocate Shri Shailesh Sharma and filed in Court. 11. The protection of disclosing professional communication is given relating to any professional communication which falls within definition of Section 126 of Indian Evidence Act 1872. It is held that privilege of professional communication to the Advocate is not given relating to signed pleadings filed in Court. 12. At the time of issuing summon learned trial Court although permitted the revisionists to file the diet money and travelling allowance for learned Advocate Shailesh Sharma but learned trial Court did not direct revisionists to mention specific purpose for which learned Advocate was to be summoned in Court as per mandatory requirement of order XVI of Code of Civil Procedure 1908. It is well settled law that party cannot be penalized for procedural irregularity of Court. In view of above stated facts point No. 1 is answered partly in yes. Point No. 2 (Relief) 13. It is well settled law that party cannot be penalized for procedural irregularity of Court. In view of above stated facts point No. 1 is answered partly in yes. Point No. 2 (Relief) 13. In view of findings on point No. 1 above revision petition is partly allowed and revisionists are permitted to examine learned Advocate namely Shailesh Kumar Sharma before learned trial Court only for limited purpose i.e. to prove the pleadings signed by Mr. Sailesh Kumar Sharma Advocate filed in Court. It is further ordered that no question will be asked from learned Advocate namely Mr. Sailesh Kumar Sharma which is prohibited as professional communications under Section 126 of Indian Evidence Act 1872. Parties are directed to appear before learned trial Court on 18th March 2016. Observations will not effect the merits of case in any manner and will be strictly confined to disposal of civil revision petition. File of learned trial Court along with certified copy of order be sent back forthwith. No order as to costs. Civil revision petition is disposed of. Pending miscellaneous applications if any also stands disposed of.