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2019 DIGILAW 461 (GAU)

Sahiruddin Khan v. Rajkumar Verma

2019-04-09

SUMAN SHYAM

body2019
JUDGMENT : Suman Shyam, J. 1. Heard Mr. B. Dutta, learned counsel for the petitioner. Also heard Mr. A.K. Gupta, learned counsel representing the respondent. 2. By filing the present revision petition invoking the jurisdiction of this court under Article 227 of the Constitution of India, three different orders passed by the learned Civil Judge, Tinsukia in connection with Money Suit No. 44/2016 have been put to challenge. 3. The facts of the case, in a nutshell, are that respondent as plaintiff had instituted Money Suit No. 44/2016 in the court of Civil Judge, Tinsukia praying for a decree for recovery of a sum of Rs. 7,27,443/- from the petitioner/defendant together with future interest and cost. The petitioner had contested the suit by filing his written statement After framing of issues, the respondent/plaintiff had submitted his list of witnesses which included the name of Sri Om Prakash Shah as one of the witnesses. But when the said witness had refused to appear and adduce evidence without the summons from the court, the plaintiff had filed an application on 09.11.2017 praying for issuance of summons to the witness. The prayer for issuance of summons to the witness was allowed by the learned trial court on 09.11.2017 i.e. on the same day on which the application was filed. The order dated 09.11.2017 is under challenge in this proceeding. 4. It appears from the record that being dissatisfied with the order dated 09.11.2017, the petitioner had filed review petition under Order 47 Rule 1 CPC seeking review of the order 09.11.2017. The review petition, which was numbered and registered as Misc (J) Case No. 60/2018 arising out of M.S. 44/2016, was rejected by the learned court below by order dated 26-04-2018. 5. After the rejection of the review petition, the petitioner had filed another application on 27.06.2018 with a prayer to permit the defendant to reserve the cross-examination of the PW-1 till the examination-in-chief of the PW-2 was completed by contending that if the cross examination of the PW-1 was held before the PW-2 is examined as a witness, serious prejudice would be caused to the interest of the defendant. By the order dated 27.06.2018 passed in M.S. 44/2016, the said prayer of the petitioner was also rejected by the learned court below. 6. Mr. By the order dated 27.06.2018 passed in M.S. 44/2016, the said prayer of the petitioner was also rejected by the learned court below. 6. Mr. Dutta, learned counsel for the petitioner has argued that as per Order 16 Rule 1(4) CPC, the plaintiff was required to file an application for issuance of summonses to the witness within five days of presenting the list of witnesses. But in this case, submits Mr. Dutta, there was delay in making the application for issuance of summons to the witness. The learned counsel further submits that the respondent had also failed to mention the purpose for which the witness is proposed to be summoned as per requirement of Order 16 Rule 1 (2) CPC. In such view of the matter, submits Mr. Dutta, the learned court below had erred in exercising its jurisdiction while passing the impugned order dated 09.11.2017. 7. The learned counsel for the petitioner has further argued that the trial court had not only rejected the review application filed by the petitioner without recording any valid reason but by the order dated 27.06.2018 the prayer for reserving the cross-examination of the PW-1 was also turned down without assigning any proper reasons. Mr. Dutta has relied upon the decisions of the Supreme Court rendered in the case of Salem Advocate Bar Association Vs. Union of India, reported in (2003) 1 SCC 49 as well as in the case of Lalitha J. Rai Vs. Aithappa Rai reported in (1995) 4 SCC 244 to contend that there was no legal bar for the learned court below to defer the cross-examination of the PW-1 in terms of the prayer made by the petitioner/defendant. 8. Mr. Gupta, learned counsel for the respondent, on the other hand, has argued that the provision in Order 16 Rule 1(4) CPC is directory in nature. Since the plaintiff had filed an application furnishing the list of witnesses which had included the name of the Om Prakash Shah, hence, the learned trial court had rightly allowed the payer of the plaintiff for issuance of summons to the said witness. By referring to Order 18 Rule 3A CPC, Mr. Gupta submits that the PW-1 in this case is the plaintiff himself and therefore, other witnesses could not have been examined prior to the plaintiff. Mr. By referring to Order 18 Rule 3A CPC, Mr. Gupta submits that the PW-1 in this case is the plaintiff himself and therefore, other witnesses could not have been examined prior to the plaintiff. Mr. Gupta also submits that there was no valid ground for the petitioner to seek review of the order dated 09.11.2017 and therefore, the learned court below had rightly rejected the review application filed by the petitioner. The learned counsel has therefore, prayed for dismissal of this petition with cost. 9. I have considered the submission made by learned counsel for both the parties and have also gone through the materials available on record. 10. Order 16 CPC deals with the procedure for summoning and attendance of witnesses. As per Rule 1(1) of Order 16, the list of witnesses is required to be filed not later than 15 days after the date on which the issues are settled. In the present case, there is no dispute about the fact that the plaintiff had filed his list of witness within the prescribed time. It is also not disputed that Om Prakash Shah is a listed witness. The objection of the petitioner/defendant is primarily on the ground that the application for issuing summons was not made in accordance with the provisions of sub-rules (2) & (4) of Rule 1 of Order 16 CPC. 11. Order 16 Rule 1 (4) had been amended by the Act 46 of 1999 whereby it has been provided that subject to the provision of sub-rule (2), summons 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, within five days of presenting the list of witnesses. From a plain reading of sub-rule 4 of Rule 1 of Order 16 CPC, it is thus clear that the application to obtain summons would have to be filed before the appropriate forum within five days of submitting the list of witnesses. The question that would, however, arise for consideration in this case is as to on the expiry of the five days from the date of filing the list of witness, whether the court would lose jurisdiction to entertain such application and issue summons to the witness. 12. The question that would, however, arise for consideration in this case is as to on the expiry of the five days from the date of filing the list of witness, whether the court would lose jurisdiction to entertain such application and issue summons to the witness. 12. After upholding the validity of the amendments made to the Code of Civil Procedure by the Amended Act of 1999 and 2002, the Supreme Court had appointed a Committee headed by a former Judge of the Supreme Court for formulating the manner in which section 89 and the other provisions of the Code could be operated so as to ensure that the amendments became effective resulting in quicker dispensation of justice. While considering the report of the Committee, the Supreme Court had held in Salem Advocate Bar Association(2) Vs. Union of India, reported in (2005) 6 SCC 344 that the amendments made to the Order 17 Rule 1 CPC providing that not more than three adjournments shall be granted, would not forbid the court from granting further adjournment if it is found that the circumstances were beyond the control of the parties. 13. Similarly, the stipulation in Order 11 Rule 15 CPC confining the inspection of documents "at or before the settlement of issues" instead of "at any time" was also held to be directory in nature. 14. While dealing with the issue as to whether the proviso to Order 8 Rule 1 CPC inserted by Act 22 of 2002 was mandatory or directory in nature, the Supreme Court had held in Kailash Vs. Nanhku, reported in (2005) 4 SCC 480 that the said provision was directory in nature. In exceptional circumstances, the court would have the power to enlarge the time for filing written statement beyond the prescribed period. The aforesaid declaration of law had been subsequently reiterated in Rani Kusum (Smt) Vs. Kanchan Devi (Smt) & Ors. reported in (2005) 6 SCC 705 . 15. From a careful analysis of the law laid down by the Hon'ble Apex Court in the aforementioned decisions, this Court is of the unhesitant opinion that sub-rule 4 of Rule 1 of Order 16 of the Code is a directory provision. Kanchan Devi (Smt) & Ors. reported in (2005) 6 SCC 705 . 15. From a careful analysis of the law laid down by the Hon'ble Apex Court in the aforementioned decisions, this Court is of the unhesitant opinion that sub-rule 4 of Rule 1 of Order 16 of the Code is a directory provision. It is no doubt correct that under sub-rule 4 of Rule 1 of Order 16 CPC, summons will have to be obtained by the parties on an application to be filed within five days of presenting the list of witnesses. But the court would not lose its jurisdiction to accept such an application and issue summons to the witness even after the expiry of five days for valid reasons if the same becomes necessary for securing the ends of justice. 16. In the present case, the applicant had given reasons as to why the application for issuance of summons had to be issued at a belated stage. The reason, which is apparent on the face of the record, is that the witness had refused to appear before the court and tender his evidence without the summons from the Court. Therefore, it may be case where the necessity to obtain summons arose at a belated stage when the witness had refused to appear before the court without being summoned. What would, however, be significant to note here-in is that in the application filed by the respondent on 09.11.2017 praying for issuance summons to witness Om Prakash Shah, there is not even a whisper as to the purpose for summoning the witness. Notwithstanding the same, the learned trial court had allowed the application filed by the petitioner by observing that the prayer was for issuing summons to Om Prakash Shah and other official witnesses even though there is no mention of "other official witnesses" in the said application. 17. What is even more surprising is the fact that the application dated 09.11.2017 was allowed by the learned trial court on the same day on which it was filed i.e. on 9.11.2017 itself, without giving any opportunity to the petitioner to file his written objection. There is nothing on record to indicate as to the reason for which the application had to be disposed of in such hot haste. There is nothing on record to indicate as to the reason for which the application had to be disposed of in such hot haste. Situated thus, this Court is of the opinion that the procedure adopted by the learned Civil Judge, Tinsukia, while disposing of the application dated 09.11.2017, on the face of the record, was in marked departure from the established procedure usually followed by the Civil Courts while disposing of such interlocutory applications. 18. A plain reading of Order 16 Rule 1 (2) CPC leaves no room for doubt that issuance of summons for securing attendance of witnesses is not a matter of right of the parties but is a discretionary power vested upon the court. Therefore, as per Order 16 Rule 1(2) CPC, the party seeking to obtain summons must satisfy the court as to the purpose for which the witness is required to be summoned. In this case, as noticed above, neither did the applicant mention the purpose for summoning the witness nor has the learned trial court recorded any satisfaction on such count. 19. For the reasons stated herein above, I am of the considered opinion that the impugned order dated 09.11.2017 not only suffers from error on account of improper exercise of jurisdiction by the learned Court below but while issuing the impugned order, the learned Civil Judge has also clearly acted in flagrant disregard of Law, Rules and Procedure and Principles of Natural Justice, thereby occasioning failure of justice. As such, the order 09.11.2017 is held to be unsustainable in law and the same is accordingly set aside. 20. Since, the orders dated 26.04.2018 and 27.06.2018 are consequential orders arising out of the order dated 09.11.2017, those orders cannot survive independently, de hors the order dated 09.11.2017. Since the order 09.11.2017 has been interfered with by this court, hence, the consequential orders 26.04.2018 and 27.06.2018 would also stand quashed. 21. In view of the determination made above, this revision petition stands allowed. However, since, this court had found fault with the learned trial court in exercise of jurisdiction while issuing the impugned order dated 09.11.2017, the matter is being remanded back for a fresh decision of the prayer made in the application dated 09.11.2017 filed by the respondent/plaintiff, in the light of the observations made above, after giving proper opportunity to the petitioner to file his written objection, if so desired. Depending upon the outcome of the application dated 09.11.2017, the parties would be at liberty to pray for any further consequential relief(s) as may be permissible under the law. The revision petition stands disposed of. Parties to bear their own cost.