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2017 DIGILAW 2678 (RAJ)

Manvendra Singh v. Shivratan

2017-12-04

DINESH CHANDRA SOMANI

body2017
JUDGMENT : DINESH CHANDRA SOMANI, J. 1. By way of this petition under Article 227 of the Constitution of India, the plaintiff/petitioner assailed the order dated 19.07.2017 passed by the learned Additional District Judge No. 3, Beawar District Ajmer (hereinafter referred as "the learned trial Court") in Civil Suit No. 123/2012, whereby the learned trial Court dismissed the application filed by the plaintiff/petitioner under section 151 of CPC to provide an opportunity to produce the witness Banshi Lal in his evidence. 2. Material facts necessary for disposal of this petition are that the plaintiff/petitioner filed a civil suit against the defendant/respondent for recovery of Rs. 1,32,500/- stating therein that the defendant took a loan of Rs. 97,000/- from him vide cheque of MGB Gramin Bank. The defendant did not return the amount of loan despite requests and legal notice. The defendant filed a written statement and contested the claim of the plaintiff denying all the averments contained in the plaint and prayed for dismissal of the suit. 3. On basis of the pleadings of the parties, learned trial Court framed issues on 19.07.2016 and fixed the case for plaintiff's evidence. The plaintiff/petitioner filed affidavit of his own and exhibited five documents in his evidence. On 26.05.2017, the plaintiff was cross-examined by the defendant and learned counsel for the plaintiff prayed for adjournment to produce remaining evidence. The learned trial Court declined the request and closed the evidence of the plaintiff and fixed the case for defendant's evidence. Thereafter, on next date 19.07.2017, the plaintiff/petitioner filed an application under section 151 of CPC, which was dismissed by the learned trial Court vide impugned order dated 19.07.2017. 4. Being aggrieved and dissatisfied with the impugned order, the plaintiff/petitioner has approached this Court by way of this petition. 5. Heard learned counsel for the parties and perused written submissions filed by learned counsel for the petitioner. 6. Contention of learned counsel for the petitioner is that advocate of the plaintiff/petitioner in learned trial Court, prayed for an opportunity to produce another witness Banshi Lal but the learned trial Court declined the request and dismissed the application without assigning reasons. It is also contended that provisions of Order 16, Rule 1 and 1-A of CPC deals with these type of contingencies to do justice to the parties. 7. It is also contended that provisions of Order 16, Rule 1 and 1-A of CPC deals with these type of contingencies to do justice to the parties. 7. Learned counsel for the petitioner also contended that witness Banshi Lal is a material witness and he is willing to give evidence in support of the plaintiff, therefore learned trial Court ought to have granted one more opportunity to the plaintiff/petitioner for examination of the witness Banshi Lal. In support of his contention, learned counsel for the petitioner placed reliance on 2014(4) Civil Court Cases 143 (P&H) M/s. IFB Industries Limited v. M/s. JBM Auto Components Ltd. 8. Learned counsel for the respondent vehemently opposed the contentions of learned counsel for the petitioner and supported the impugned order passed by the learned trial Court and prayed to dismiss the petition being devoid of merits. 9. Admittedly, the issues were framed on 19.07.2016 and the case was fixed for plaintiff's evidence. It is not disputed that after giving four opportunities to the plaintiff to produce his evidence, learned trial Court granted one more opportunity to the plaintiff to produce his all evidence on next date, and fixed the case for 26.05.2017. On 26.05.2017, only the plaintiff was present and he was cross-examined on his affidavit by the defendant. No other witness of the plaintiff was present on that day and the learned trial Court closed the plaintiff's evidence. 10. Order 16 of CPC provides for summoning and attendance of witnesses. Rule 1 of Order 16 CPC provides for list of witnesses and summons to witnesses. Sub-rule (1) of Rule 1 (supra) provides for presenting the list of witnesses whom the party proposes to call either to give evidence or to produce documents. Sub-rule (2) of Rule 1 (supra) provides for filing of an application for summoning the witness proposed to be summoned. Sub-rule (3) of Rule 1 (supra) provides that the Court may permit a party to call any witness, not referred in the list of witnesses. Rule 1-A of Order 16 of CPC provides that any party to the suit may bring any witness to give evidence or to produce document without applying for summons under Rule 1. 11. Sub-rule (3) of Rule 1 (supra) provides that the Court may permit a party to call any witness, not referred in the list of witnesses. Rule 1-A of Order 16 of CPC provides that any party to the suit may bring any witness to give evidence or to produce document without applying for summons under Rule 1. 11. It is not the case of the petitioner that any list of witnesses was filed by him or the witness Banshi Lal was ever present in the Court on any date fixed for plaintiff's evidence. The plaintiff/petitioner has not assigned any reason for not bringing the witness Banshi Lal in the Court on or before 26.05.2017, when the case was fixed for his evidence. The plaintiff filed the application for examination of Banshi Lal, after the learned trial Court has closed his evidence. 12. It is pertinent to note that the plaintiff/petitioner has filed affidavit of his own in his evidence. It is stated in the affidavit that Dilip Singh Rajput was present in the bank on 18.03.2009, when the defendant produced the cheque of loan amount in the bank and received payment thereof. But name of so called witness Banshi Lal is not mentioned in the affidavit of the plaintiff/petitioner. 13. In M/s. IFB Industries Limited v. M/s. JBM Auto Components Ltd. (supra), after framing the issues, the case was listed for evidence of the plaintiff company. The plaintiff company moved an application to summon it's witnesses, which was allowed. The learned trial Court summoned Bikramjit Nag, along with documents who happens to be the Joint Executive Chairman and Managing Director of the defendant company. Thereafter, the defendant company moved an application to disallow the plaintiff to examine the indicated witness, which was dismissed by the learned trial Court. The plaintiff assailed the order in the revision petition. Significant question for determination of the Court was whether in the wake of the application filed by the plaintiff company, learned trial Court has the jurisdiction to summon the witnesses mentioned therein or not? Hon'ble Court observed and held that once the learned trial Court has summoned it's witnesses on furnishing process fee, depositing diet money and their expenses, in that eventuality the defendant has no legal right to move an application to stop examination of plaintiff's witnesses in the Court and Hon'ble Court dismissed the revision petition. Hon'ble Court observed and held that once the learned trial Court has summoned it's witnesses on furnishing process fee, depositing diet money and their expenses, in that eventuality the defendant has no legal right to move an application to stop examination of plaintiff's witnesses in the Court and Hon'ble Court dismissed the revision petition. Due to difference in the facts and circumstances of the case, the law laid down by Punjab & Haryana High Court in M/s. IFB Industries Limited (supra), does not apply in this case. 14. In view of the discussions made above, the learned trial Court examined the matter in right perspective and noted the reasons for not allowing the application filed by the plaintiff/petitioner. The impugned order contains valid reasons. Learned counsel for the petitioner was unable to point out any perversity or impropriety in the impugned order passed by the learned trial Court. 15. It is settled position of law that in exercise of it's power of superintendence under Article 227 of the Constitution, this Court cannot interfere with the orders of tribunals or courts subordinate to it, nor can it, in exercise of this power, act as a court of appeal over the orders of the tribunals or Courts subordinate to it. 16. The High Court can interfere in exercise of its power of superintendence, when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence, the Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The power is discretionary and has to be exercised on equitable principle. 17. On consideration of submissions made on behalf of the learned counsel for the parties and having regard to the material made available on record and more particularly looking to the reasons recorded by the learned trial Court in support of the impugned order and the pleadings taken by the parties, I do not find any illegality or impropriety in the impugned order requiring interference by this Court under Article 227 of the Constitution of India. 18. Consequently, the writ petition being meritless, is dismissed. 19. 18. Consequently, the writ petition being meritless, is dismissed. 19. In view of above, the stay application is also dismissed.