Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 116 (AP)

Pratap Chaganlal v. Vikram Jethalal Joisher

2022-01-28

R.RAGHUNANDAN RAO

body2022
ORDER : The petitioners herein are the defendants in O.S.No.19 of 2007 pending before the II Additional District Judge, Hindupur. On 17.11.2021, the trial Court had closed the evidence of the petitioners. Aggrieved by the said order, the petitioners had approached this Court, by way of C.R.P.No.1266 of 2021. This Civil Revision Petition was disposed of by an order dated 07.12.2021 with the following directions : 1. The order of the trial Court dated 17.11.2021 is set aside. 2. The defendant, who is to be examined as DW.1, shall appear before the trial Court on 14.12.2021 without fail and shall be cross-examined on that day and such further days as may be necessary for the counsel of the plaintiffs to complete the cross-examination. 3. The defendants shall also furnish a list of witnesses that are proposed to be examined by them on 14.12.2021 itself. 4. On such list of witnesses being furnished, the trial Court shall fix a schedule for examination of such witnesses. 5. The witnesses cited by the defendants/petitioners herein shall appear, without fail on the dates indicated by the trial Court. Any failure of the said witnesses to appear on the dates given by the trial Court shall result in the said witnesses being eschewed. 6. In the event of any difficulty for the trial Court to adhere to the schedule on account of any delay caused during the cross-examination of the witnesses, it would be open to the trial Court to alter the schedule. 7. Sri C.V. Mohan Reddy, learned Senior Counsel for the respondents seeks a further direction that the defendants should complete re-examination on the same day on which the cross-examination is completed. It will be open to the trial Court to decide on this issue. 2. Thereafter, the matter was taken up by the trial Court. On 14.12.2021, the defendants had filed a list of witnesses containing 10 names and the trial Court fixed a schedule for examining these witnesses. 3. However, the evidence of D.W.1 which was fixed for 21.12.2021 could not be completed till 23.12.2021. On account of this delay, a fresh schedule was fixed on 23.12.2021. It appears that the examination of witnesses was carried out in accordance with this schedule up to D.W.9. 3. However, the evidence of D.W.1 which was fixed for 21.12.2021 could not be completed till 23.12.2021. On account of this delay, a fresh schedule was fixed on 23.12.2021. It appears that the examination of witnesses was carried out in accordance with this schedule up to D.W.9. It is also the case of both sides that D.W.6 to D.W.9 were called absent on the dates on which they were to be available for examination and that their evidence was closed on the respective dates given in the schedule. 4. It also appears that on 20.12.2021, the petitioners had filed for summons to be issued to D.W.10, who was the Commercial Tax Officer, Hindupur, under Rule 1 and Rule 5 of Order XVI C.P.C. Subsequently, summons are said to have been obtained by the Petitioners herein, under Rule 7A of Order XVI, and served on D.W.10 by the petitioners themselves. 5. The evidence of D.W.10 was to be recorded on 17.01.2022, according to the schedule given on 23.12.2021. However, on that day D.W.10 did not appear in Court nor was any affidavit filed in lieu of examination-in-chief on behalf of D.W.10. The trial Court recorded these two facts and adjourned the matter to 19.01.2022 on the ground that the high Court, on the administrative side, had issued a circular No. ROC.No.192/SO/2020, dated 10.01.2022, directing all the trial Courts to defer witness action until further orders. The matter was again called on 19.01.2022 and the case was posted to 21.01.2022 with the same observations. On 21.01.2022, the case was posted to 27.01.2022. 6. At that stage, the respondents herein moved I.A.No.1 of 2022 before this Court in CRP.No.1266 of 2021 for a direction to the trial Court to eschew the evidence of Commercial Tax Officer, Hindupur (DW 10) in the above suit or in the alternative to permit recording of his evidence by video conference and pass such other orders as are deemed fit. 7. When the matter was taken up on 24.01.2022, Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents herein and Sri D.Prakash Reddy, learned senior counsel for the petitioners herein had appeared and had set out their respective contentions. 8. 7. When the matter was taken up on 24.01.2022, Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents herein and Sri D.Prakash Reddy, learned senior counsel for the petitioners herein had appeared and had set out their respective contentions. 8. In the course of the hearing, Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents had also placed a memo that is said to have been served on the counsel appearing for the respondents herein before the trial Court, by DW 10. This memo dated 21.01.2022 stated that D.W.10, would be unable to give evidence as the record pertaining to the period beyond 12 years had been destroyed, as is the usual practice, and the said witness could not be able to give evidence. On that ground, a request was also made that the evidence of D.W.10 be forfeited. Sri D.Prakash Reddy, learned senior counsel for the petitioners had sought time to obtain instructions on this memo. 9. When the matter was called on 27.01.2022, Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents had informed the Court that the trial Court had closed the evidence of D.W.10 and as such, the application filed by the respondents herein had become infructuous. On that basis, I.A.No.1 of 2022 in C.R.P.No.1266 of 2021 was dismissed as infructuous. 10. The petitioners herein have now moved the present civil revision petition, by way of lunch motion today, against the order of the Trial Court dated 27.01.2022. I have heard both Sri D.Prakash Reddy, learned senior counsel for the petitioners and Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents who are on caveat. 11. It is the case of Sri D.Prakash Reddy, learned senior counsel for the petitioners that the trial Court having taken the view on 17.01.2022, 19.01.2022 and 21.01.2022 that the examination of D.W.10 cannot go on, on account of the circular issued by the trial Court had, without assigning any cogent reason, had taken a contrary view on 27.01.2022, and closed the evidence of D.W.10 on the ground the chief affidavit of D.W.10 was not filed and D.W.10 had not appeared through blue jeans and posted the matter for arguments on 31.01.2022. 12. 12. Sri D.Prakash Reddy, learned senior counsel for the petitioners would submit that the orders of this Court in C.R.P.No.1266 of 2021 were only to the effect that the witnesses were to appear on the dates given by the trial Court and that the trial Court cannot take that direction to mean that the non filing of an affidavit in lieu of examination-in-chief amounts to violation of the direction of this Court. He would further submit that the respondents herein, in I.A.No.1 of 2022 had framed a prayer for permitting examination of D.W.10 by way of video conference and that the petitioners herein are agreeable for such a course of action. 13. Sri C.V. Mohan Reddy, learned Senior Counsel for the respondents on the other hand would submit that the earlier view of the trial Court that the administrative orders of the High Court would over rule the judicial order of this Court was erroneous and the impugned order dated 27.01.2022 was passed by correcting the earlier erroneous view and cannot be interfered with. He further submits that the conduct of the petitioners would show that they have been interested only in prolonging the matter and as such, no further time need be granted. He would further submit that apart from seeking further time for production of D.W.10, the petitioners herein, in order to prolong the suit, have also filed various applications at the fag-end of the trial seeking amendment of the written statement and seeking reframing of the issues in the suit. 14. Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents would also draw the attention of this Court to the unnumbered application filed by the petitioners, before the trial court, for summoning D.W.10. Sri C.V. Mohan Reddy, learned Senior Counsel for the respondents would submit that direction No.5 dated 07.12.2021 in C.R.P.No.1266 of 2021 clearly stipulates that the witnesses cited by the defendants should appear on the date indicated by the trial Court and failure to appear on that date would result in the said witnesses being eschewed. He would submit that in such a situation, the non appearance of D.W.10 on 17.01.2022 is a violation of condition No.5 resulting in the consequence of the said witness being eschewed. 15. In the circumstances, he would submit that no interference is called for in the order dated 27.01.2022. 16. He would submit that in such a situation, the non appearance of D.W.10 on 17.01.2022 is a violation of condition No.5 resulting in the consequence of the said witness being eschewed. 15. In the circumstances, he would submit that no interference is called for in the order dated 27.01.2022. 16. The suit has been pending since 2007 and this Court by an order dated 07.12.2021 had issued certain directions to ensure an early closure of the trial. There is also no dispute between the parties that the directions of this Court have been complied in letter and spirit up to 17.01.2022. It is only on 17.01.2022 that the directions of this Court could not be complied with. 17. The direction of this Court was that the witnesses should be available on the dates on which the trial Court was willing to take up their evidence. In the present case, the trial Court was not in a position to take up evidence on 17.01.2022 on account of the circular issued by this Court on the administrative side. In the circumstances, it would have to be held that non appearance of D.W.10 on that day cannot be treated as a violation of the directions of this Court or the Trial Court. However, the fact remains that D.W.10 has now served a memo on the counsel for the respondents stating that he was unwilling to appear before the Court as he had no material on the basis of which, he could give evidence. Sri D.Prakash Reddy, learned senior counsel for the petitioners would submit that no documents are sought from D.W.10 and only certain questions need to be put to D.W.10 and as such, D.W.10 cannot refuse to come to Court after summons had been served on him. 18. Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents would submit that the summons that are said to have been served on D.W.10 are summons taken out under Order XVI Rules 1 & 2 of C.P.C and as such, that would not be sufficient to compel the appearance of D.W.10 and appropriate summons would have to be taken out under Rule 5 C.P.C which requires the party taking out such summons to set out the purpose for which, the witness is being summoned and essentially to set out the area of examination for such a witness. He submits that no such attempt has been made by the petitioners herein and in the absence of any formal order of the Court summoning D.W.10 it would have to be held that there is no valid summons compelling D.W.10 to appear on the date fixed by the Court. 19. Order XVI Rules 1 & 2 of C.P.C provide that a party to the suit shall present to the Court a list of witnesses who are proposed to be called either to give evidence or to produce documents and to obtain summons to such persons for their attendance in Court. Rule 5 only requires that the summons, so obtained, should contain certain details. After obtaining such summons, the party can thereupon, under Rule 7A, serve the summons on the witness who is sought to be summoned to Court. It appears that this procedure has been followed in the present case. 20. Rule 10 of C.P.C stipulates that where a person to whom such summons have been issued, fails to attend the Court, the Court, under sub rule 3, being satisfied that the absence of the person is without lawful excuse or that the evidence sought to be obtained from the witnesses is material, can initiate action to compel the presence of the witness, by issuing a warrant either with or without bail for arrest of such person to ensure his appearance before the Court. 21. The Trial Court, in view of the circular issued by the High Court, could not have recorded the evidence of D.W.10 on 17.01.2022. In such a situation the absence of D.W.10 on 17.01.2022 and subsequent dates of hearing cannot be a ground for the trial Court to close the evidence of D.W.10. and it would have been appropriate to await further orders of the High Court, withdrawing the administrative Circular or modifying the directions in the circular, before proceeding with the recording of the evidence of D.W.10 or closing it in the event of the absence of D.W. 10, on the day on which the trial court was in a position to record the evidence of D.W.10. 22. The matter does not end there. There is the matter of the refusal of D.W.10 to appear before the trial Court despite the service of summons by the Petitioners. 22. The matter does not end there. There is the matter of the refusal of D.W.10 to appear before the trial Court despite the service of summons by the Petitioners. The Trial court, would have to take a decision as to whether his presence is required in terms of Sub Rule 2 and Sub Rule 3 of Rule 10 of Order XVI of C.P.C. and whether he should be compelled to appear or not. 23. In view of the above provisions of law and in view of the above facts set out in the order, this Court, keeping in view the necessity of completing the trial in this matter which has been pending for the last 14 years, while balancing the rights of the petitioners to adduce necessary evidence on their behalf, deems it appropriate to dispose of this petition with the following directions: A. The trial Court, after hearing both sides, shall come to a decision as to whether the presence of D.W.10 is necessary. B. In the event of the trial Court finding the presence of D.W.10 to be necessary, the evidence of D.W.10 shall be recorded by appointment of an Advocate Commissioner. In view of the administrative circular of the High Court, prohibiting witness action till further orders, the said evidence shall be recorded by virtual conference alone, and not physically, by both the petitioners as well as the respondents herein. This direction is being given in view of the stand taken by the Respondents in I.A.No.1 of 2022 and in view of the extreme urgency being cited by the Respondents. C. In the event of the trial Court finding that the necessity of evidence of D.W.10 is not made out by the petitioners herein, the trial Court would thereupon take up further proceedings in the suit, in accordance with law. D. For this purpose, both parties shall adduce their arguments before the trial Court on 31.01.2022 itself. E. The order of the trial Court dated 27.01.2022, to the extent of closing the evidence of D.W.10, is set aside. 24. In view of the paucity of time, the operative part of this order may be conveyed by the learned counsel for the petitioners and the respondents to the trial Court to enable the trial Court to take up hearing of this issue on 31.01.2022. 25. Accordingly, the Civil Revision Petition is disposed of. 24. In view of the paucity of time, the operative part of this order may be conveyed by the learned counsel for the petitioners and the respondents to the trial Court to enable the trial Court to take up hearing of this issue on 31.01.2022. 25. Accordingly, the Civil Revision Petition is disposed of. There shall be no order as to costs. Miscellaneous petitions, pending if any, in this Civil Revision Petition shall stand closed.