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2017 DIGILAW 826 (ALL)

NEW INDIA ASSURANCE CO. LTD. v. MANJEET SINGH

2017-03-23

SANGEETA CHANDRA

body2017
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This writ petition as was initially filed bore the caption “under Article 226/227 of the Constitution of India” and prayer made by the Insurance Company was for writ a in the nature of “certiorari” for quashing the order impugned dated 3.9.2002 passed on application paper No. 129 Ga2, which was moved by the Insurance Company, who is the defendant-respondent in the Original Suit No. 855 of 1998, which was rejected by the Court of Additional Civil Judge (Senior Division) Court No. 3, Kanpur Nagar. 2. At the outset counsel for the petitioner has prayed that the reliefs prayed for in so far as the language in which it has been drafted may be modified and only a direction may be issued to set aside the order dated 3.9.2002 passed by the Court below, in terms of the Hon’ble Supreme Court in the case of Radhey Shyam v. Chhabinath, 2015 (5) SCC 423 . 3. On merits of the case learned counsel for the petitioner submitted that three different polices were taken by the plaintiff/respondent No. 1 for insuring his shop building, the furniture, the stocks and due to fire occurring on the premises, the stock etc. were destroyed. The claim of the plaintiff/respondent was investigated by four surveyors at different points of time and they all submitted reports for rejection of the claim, on the ground that it was not covered and under the policies taken by the plaintiff/respondent. 4. When the plaint was filed, a written statement was also filed and documentary evidence etc. was also filed by both the parties. The reports of the surveyors could not have been proved unless the surveyors were examined in person, therefore, an application was moved by the petitioner, who were the defendant respondents before to the Court concerned to examine the witnesses by sending a commission. This application however, was rejected by the trial Court on 16.10.2001. The reports of the surveyors could not have been proved unless the surveyors were examined in person, therefore, an application was moved by the petitioner, who were the defendant respondents before to the Court concerned to examine the witnesses by sending a commission. This application however, was rejected by the trial Court on 16.10.2001. Thereafter, the defendant respondents moved an application on 3.9.2002 which has been filed as annexure 5 to the writ petition, in which they prayed for summons to be issued to the defence witnesses for examination by the Court concerned, which application was rejected by the Court below on 3.9.2002 itself on the ground that there is no such law to summon defendants witnesses and the onus lies on defendant to prove is case by ensuring the presence of his own witnesses. This order has been challenged in the writ petition by the petitioners. 5. Learned counsel for the petitioner has pointed out that the relevant provisions of the Code of Civil Procedure applicable in this case. Order Rule 1 Sub Rule (2) is quoted herein below : List of witnesses and summons to witnesses.—(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court as list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call,whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause of the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the [Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)].] 6. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the [Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)].] 6. From a perusal of the Rule 1 of Order 16, it is evident that Sub rule (2) of Sub rule (3) are applicable in this case. The Court concerned on the application being made by any party desirous of obtaining any summons for attendance of any persons may for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those, whose names appear in the list of witnesses referred to in sub rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the list filed earlier. 7. It means in ordinary english that in case the defendant or the plaintiff for sufficient reasons are able to show that even such witness, who has not been mentioned in the list of witnesses earlier are required for a proper adjudication of the case, they may move an application and the Court may decide the same and issue necessary summons. 8. The order impugned passed by the Court below suffers from an error apparent on the face of the record as it is against the statutory provisions of the Civil Procedure Code itself, it is liable to be set aside and therefore is set aside by this Court. 9. The parties may appear before the trial Court concerned within 1 month from today to further advance their pleadings and the Court concerned shall thereafter decide the matter without giving unnecessary and undue adjournments to either side, as expeditiously as possible. 10. With regard to the interim order passed by this Court at the time of admission of the writ petition on 17.12.2002 confirmed on 8.9.2003 since the order is self speaking regarding the deposit of money by the petitioner being subject to the final decision in the Suit No. 855 of 1998. No further directions are required to be issued by this Court. 11. The writ petition is allowed.