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2018 DIGILAW 34 (SIK)

Nauratanmal Ashok Kumar v. Yangzila Bhutiani

2018-06-01

BHASKAR RAJ PRADHAN

body2018
ORDER : 1. Heard. 2. The present Writ Petition invoking the powers under Article 227 of the Constitution of India seeks to assail two orders passed by the learned District Judge dated 02.06.2017 and 19.08.2017 in Title Suit (Declaratory) No.01/2012. The Writ Petition was filed on 29.08.2017. The learned District Judge vide the impugned order dated 02.06.2017 opined that given the nature of the litigation and the issues involved in it 20 witnesses named in the list of Plaintiff’s witnesses were found to be relevant out of the 52 witnesses sought to be examined by the Petitioner herein as the Plaintiff. The learned District Judge was of the view that in determining the number of witnesses the Court should take into account the nature of litigation, nature and number of issues required to be proved and the fact on whom onus has to be laid. The learned District Judge was also of the view that it has also to take into account the specified purpose for which the particular witnesses is required to be produced. 3. The impugned order dated 02.06.2017 records that the Petitioner had submitted considering the nature of the case it would not be possible for him to produce the 20 witnesses on his own and prayed for issuing summons to the concerned witnesses at his expense. Accordingly, as desired by the Petitioner summons were issued to the said witnesses for various dates. 4. The impugned order dated 02.06.2017 also records that the Petitioner desired to file his evidence on affidavit by 12.06.2017. A perusal of the records thereafter reflects that the said suit proceeded through trial. The records also reveal that the learned District Judge was conscious of the fact that the Petitioner was not represented by a lawyer and therefore full and adequate opportunity was given to the Petitioner to present his case. Documents which were not filed originally were also permitted to be filed by the Petitioner. 5. On 12.06.2017 the Petitioner confirmed and authenticated his evidence on affidavit before the Trial Court on oath. On 13.06.2017 the Petitioner was cross-examined by the Respondents herein. The Petitioner’s witnesses who were summoned as desired by the Petitioner were examined on various dates till 19.08.2017. Admittedly out of 20 witnesses 16 witnesses have already been examined. 6. 5. On 12.06.2017 the Petitioner confirmed and authenticated his evidence on affidavit before the Trial Court on oath. On 13.06.2017 the Petitioner was cross-examined by the Respondents herein. The Petitioner’s witnesses who were summoned as desired by the Petitioner were examined on various dates till 19.08.2017. Admittedly out of 20 witnesses 16 witnesses have already been examined. 6. Vide the impugned order dated 19.08.2017 it is recorded that the date was fixed for examination of Shri Phuchung Tshering Bhutia, Shri Govind Mohan and Shri C.M Sharma. Since Shri Phuchung Tshering Bhutia was present he was examined and his statement was recorded. The other witnesses were absent. Summons issued to Shri C.M Sharma had returned unserved with the report that he was not found in the given address. 7. The Petitioner submitted before the Trial Court that he was unaware of the present address of Shri C.M Sharma and accordingly, prayed to drop Shri CM Sharma on the said ground. The said impugned order dated 19.08.2017 also records that according to the Petitioner the facts required to be proved by the said witnesses were already in his notings which are there before the Trial Court. As prayed for by the Petitioner Shri C.M Sharma was dropped as the Petitioners witnesses. 8. Summons issued to Shri Govind Mohan had however, returned unserved with the report that he had already been transferred on deputation outside the state for a period of five year. 9. The Respondents submitted before the Trial Court that the notings required to be proved by Shri Govind Mohan were already before the Trial Court and as such, summoning him, which was not possible without incurring considerable delay and inconvenience could be a futile exercise. The Petitioner conceded that the noting of Shri Govind Mohan were already before the Trial Court and that he was only required to prove the said notings. The learned District Judge thus opined that since the concerned notings were made by Shri Govind Mohan in his capacity as public servant summoning him to merely identify the same that too at the cost of undue delay would be a futile exercise, more so when the said notings are already before the Trial Court. 10. The learned District Judge thus opined that since the concerned notings were made by Shri Govind Mohan in his capacity as public servant summoning him to merely identify the same that too at the cost of undue delay would be a futile exercise, more so when the said notings are already before the Trial Court. 10. The impugned order dated 19.08.2017 also records that the Petitioner had not taken any steps with regard to his witness Shri B.K Naug despite direction of the Trial Court in this regard given vide order dated 14.07.2017. The Petitioner submitted before the Trial Court that the said witness was required to be examined in connection with the entries (particularly thumb impressions) in the Volume Book (No.1) which was supposed to be produced by the Respondent No.2. It is also recorded that unfortunately the said volume book was not traceable in the concerned office and the said fact was also affirmed on oath by the Respondent No. 2 vide affidavit dated 26.07.2017 and as such, summoning the said witness would be a futile exercise. Thus, the District Judge vide impugned order dated 19.08.2017 closed the Plaintiff’s evidence and directed the Respondent No.1 to file her as well as her witnesses evidence on affidavit by 01.09.2017. Aggrieved thereby the Petitioner has preferred the present Writ Petition. 11. A perusal of the impugned order dated 02.06.2017 makes it evident that the learned Trial Court had infact examined the nature of the litigation and passed the reasoned impugned order directing the examination of 20 witnesses named therein by the Petitioner out of the 53. The records also reveal that pursuant to the said impugned order dated 02.06.2017 the Trial has proceeded and 16 witnesses have already been examined. The Petitioner did not assail the said impugned order dated 02.06.2017 until the impugned order dated 19.08.2017 was passed by the learned District Judge. In fact the records reveal that the impugned order dated 02.06.2017 was accepted by the Petitioner and steps taken by him as directed. 12. The impugned order dated 02.06.2017 had come to a firm conclusion that the examination of the 20 witnesses including Shri B.K Naug, Shri Govind Mohan and Shri C.M Sharma were relevant for the purpose of the Trial. 12. The impugned order dated 02.06.2017 had come to a firm conclusion that the examination of the 20 witnesses including Shri B.K Naug, Shri Govind Mohan and Shri C.M Sharma were relevant for the purpose of the Trial. The records reveal the examination of Shri B.K Naug was not pursued by the Petitioner himself and Shri C.M Sharma was dropped at the instance of the Petitioner. 13. The only question which therefore remains to be answered by this Court in the present Writ Petition is whether the impugned order dated 19.08.2017 dropping Shri Govind Mohan as a witness was correct in the facts and circumstances of the present case. It is trite that documents are required to be proved by the maker thereof. Admittedly, Shri Govind Mohan has been named as the concerned official who has made the notings sought to be relied upon by the Petitioner. The learned District Judge had already come to the conclusion that Shri Govind Mohan was a relevant witness. The only reason assigned for dropping Shri Govind Mohan by the learned District Judge is that since the said notings have been made by Shri Govind Mohan in his capacity as a public servant summoning him to merely identify it that too at the cost of undue delay would be a futile exercise. The learned District Judge having first come to a conclusion vide impugned order dated 02.06.2017 that the said Shri Govind Mohan was a relevant witness and thereafter having issued summons was not correct in dropping the said Shri Govind Mohan as a witness on the ground adverted to above. 14. In view of the aforesaid the impugned order dated 19.08.2017 passed by the learned District Judge to the extent it closes the Petitioners evidence and drops Shri Govind Mohan as a witness is set aside and it is directed that the learned District Judge, Special Division I, shall take necessary steps to examine the said Shri Govind Mohan as the Petitioner’s witness for the just decision of the case. 15. The Petitioner who is appearing in person further submits that the concerned documents sought to be relied upon by the Petitioner in the Trial not being available he would have difficulties. The said issue is not before this Court in the present Writ Petition. The Petitioner may file appropriate application before the Trial Court as advised for the said purpose. The Petitioner who is appearing in person further submits that the concerned documents sought to be relied upon by the Petitioner in the Trial not being available he would have difficulties. The said issue is not before this Court in the present Writ Petition. The Petitioner may file appropriate application before the Trial Court as advised for the said purpose. Nothing further remains to be examined. 16. The Writ Petition is disposed of in the above terms. 17. The Interim order passed by this Court on 01.09.2017 is vacated. Let the parties appear before the Court of learned District Judge, Special Division-I, East Sikkim at Gangtok on 18.06.2018. 18. The lower Court records shall be remitted forthwith.