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2023 DIGILAW 1206 (RAJ)

Paramjeet Kaur v. Sarjeet Kaur

2023-05-30

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT 1. This writ petition has been preferred claiming the following reliefs: 'It is therefore, humbly prayed on behalf of petitioner that this writ petition may kindly be allowed and a) By an appropriate writ, order or direction the order dated 01.05.2023 (Annex-6) passed by the learned Special Judge NDPS cases, District Sriganganagar in Civil Case No.241/2016 rejecting the application of the petitioner (Annex-4) under Order 16 Rule 1 & 2 read with 151 CPC and application for summoning witnesses (Annex-5) may kindly be quashed and set aside. b) in consequence thereof the application filed by the petitioner (Annex-4) under Order 16 Rule 1 & 2 read with 151 CPC and application for summoning witnesses (Annex-5) may kindly be allowed in toto as prayed. c) Any other writ, order or direction which as deemed just and proper by the Hon'ble Court in the facts and circumstances of the case may also kindly be passed in favour of the petitioners. d) The cost of the writ petition may kindly be awarded in favour of the petitioners.' 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, that the respondent instituted a suit for cancellation of gift deed dated 17.08.2009 pertaining to certain land, against the petitioner, before learned District Judge, Sri Ganganagar. The petitioner filed a written statement to the said suit; whereupon the learned Court below framed certain issues and proceeded with the trial. 2.1. During pendency of the suit, the petitioner filed an application under Order 16 Rules 1 & 2 read with Section 151 CPC seeking to add the Sub-Registrar, Chunavad in the list of witnesses, because the gift deed in question, upon being executed, was registered before him; the petitioner has also preferred an application for summoning the Sub-Registrar along with the relevant record. However, the learned Court below vide impugned order dated 01.05.2023 rejected the both applications preferred by the petitioner. 2.2. Thus, being aggrieved by the impugned order dated 01.05.2023 passed by the learned Court below, the petitioner preferred this writ petition, claiming the afore-quoted reliefs. 3. Learned counsel for the petitioner submitted that the Sub- Registrar, Chunavad is the relevant and independent witness to prove the issue regarding the execution of gift deed in question, and the respondent has also admitted the fact of execution of the gift deed in question before the Sub-Registrar, Chunavad. 3.1. 3. Learned counsel for the petitioner submitted that the Sub- Registrar, Chunavad is the relevant and independent witness to prove the issue regarding the execution of gift deed in question, and the respondent has also admitted the fact of execution of the gift deed in question before the Sub-Registrar, Chunavad. 3.1. Learned counsel further submitted that the respondent herself appeared before the Sub-Registrar at the time of registration of the gift deed in question, and the said fact was admitted by the respondent; therefore, the rejection of the applications by learned Court below vide the impugned order is not sustainable in the eye of law. 3.2. In support of his submissions, learned counsel relied upon the judgment rendered by this Hon'ble Court in the case of Shanker Lal Vs Shambhu (S.B. Civil Writ Petition No. 3625 of 2018, decided on 30.08.2018); and the judgment rendered by a Coordinate Bench of this Hon'ble Court in case of Gurjant Singh Vs Smt. Amarjeet Kaur & Anr. (S.B. Civil Writ Petition No. 13516 of 2017, decided on 29.06.2022) Relevant portion of judgment rendered in Gurjant Singh (Supra) is reproduced as hereunder- '10. It is to be noted that the petitioner-applicant had not mentioned relevant provisions under which he had moved an application seeking summoning of the witnesses but, then, it cannot be a reason to non-suit an applicant. 11. The provisions contained under Order XVI Rule (1) and (2) of the Code of Civil Procedure in unequvivocal terms provide that the Court suo moto or on an application, can issue summons to a witness to appear in the Court. 12. Sub-rule (2) of Rule 1 of the Order XVI of the Code enjoins upon the party desirous of getting a summon issued to a witness to state in its application the purpose for which the witness is proposed to be summoned. 13. A perusal of subject application dated 15.11.2016 shows that the petitioner had stated that the plaintiff herself had purchased the stamp from the stamp vendor - 'Tulchhiram Sindhi' and thereafter she herself had appeared before the Sub-Registrar, Chunavadh for executing and getting the relinquishment deed registered. 14. 13. A perusal of subject application dated 15.11.2016 shows that the petitioner had stated that the plaintiff herself had purchased the stamp from the stamp vendor - 'Tulchhiram Sindhi' and thereafter she herself had appeared before the Sub-Registrar, Chunavadh for executing and getting the relinquishment deed registered. 14. Though the application is not well worded but in view of petitioner's stand in his written statement and considering the submissions of learned counsel, this Court is of the view that presence of the stamp vendor and Sub-Registrar is necessary in order to ascertain the veracity of petitioner's stand. 15. The trial Court has not properly considered the mandate of the provisions contained in Order XVI Rule 1 and 2 of the Code and has cursorily rejected petitioner's application indicating that the applicant has failed to establish the relevancy of the testimony of these two witnesses. 16. According to this Court, while deciding application under Order XVI Rule 1 and 2 of the Code of Civil Procedure, the trial Court is required to prima-facie ascertain the relevancy and requirement of the proposed witnesses. The applicant may be called upon to show relevance or need of such witness(es) but he/ she cannot be asked to establish or prove such requirement. The requirement has to be determined by the Court. 17. In the facts of the present case, this Court is of the considered view that the stamp vendor and the then SubRegistrar are relevant witnesses, who would assist the Court to come to a correct conclusion. 18. As an upshot of the discussion foregoing, the present writ petition is allowed; the impugned order 05.10.2017 is quashed and set aside; petitioner's application dated 15.11.2016 is hereby allowed. 19. The learned trial Court is directed to issue requisite summons to stamp vendor Tulchhiram Sindhi and the then Sub Registrar, Chunavadh, of course on furnishing requisite cost to be determined by the trial Court.' 4. On the other hand, learned counsel appearing on behalf of the respondent, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that the petitioner fraudulently got the gift deed in question executed and registered, because the respondent is old aged person and she has no knowledge of execution of the gift deed in question. 4.1. On the other hand, learned counsel appearing on behalf of the respondent, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that the petitioner fraudulently got the gift deed in question executed and registered, because the respondent is old aged person and she has no knowledge of execution of the gift deed in question. 4.1. Learned counsel further submitted that the suit has been pending since 2011 and more than 12 years have already elapsed, but still the matter has not been decided finally; therefore, at this stage, the said applications were rightly rejected by the learned Court below vide the impugned order. 5. Heard learned counsel for the parties as well as perused the record of the case along with judgments cited at the Bar. 6. This Court observes that the suit has been filed by the respondent for cancellation of gift deed in question against the petitioner and during the pendency of the said suit, the petitioner filed the aforementioned applications for adding the Sub-Registrar, Chunavad in the list of witnesses and summoning him with relevant record of the case. The said applications were rejected by learned Court below vide the impugned order dated 01.05.2023. 7. This Court further observes that the gift deed in question was executed before the Sub-Registrar, Chunavad by the parties. The entire controversy is related to the gift deed, and since the gift deed in question was executed before the Sub-Registrar, then his examination is necessary for proper and effective adjudication of the suit pending before the learned Court below. Therefore, the impugned order rejecting the aforementioned applications preferred by the petitioner in the suit is not justified in law. 8. This Court also observes that in the case of Gurjant Singh (Supra), a Coordinate Bench of this Hon'ble Court observed that, 'According to this Court, while deciding application under Order XVI Rule 1 and 2 of the Code of Civil Procedure, the trial Court is required to prima-facie ascertain the relevancy and requirement of the proposed witnesses. The applicant may be called upon to show relevance or need of such witness(es) but he/ she cannot be asked to establish or prove such requirement. The requirement has to be determined by the Court'. 8.1. The applicant may be called upon to show relevance or need of such witness(es) but he/ she cannot be asked to establish or prove such requirement. The requirement has to be determined by the Court'. 8.1. In the present case, in view of the judgment rendered in Gurjant Singh (supra) also, adding of the Sub-Registrar in the list of witnesses is necessary and the Sub Registrar is also required to be summoned by the learned trial court for due adjudication of the suit in question. 9. Thus, in view of the aforesaid observations and in light of the judgment rendered in Gurjant Singh (Supra) as well as looking into the factual matrix of the present case, the present writ petition is allowed, and while quashing and setting aside the impugned order dated 01.05.2023 (Annex-6) passed by Special Judge, NDPS Cases, Sri Ganganagar in Civil Case No.241/2016, the learned Court below directed to permit inclusion of the SubRegistrar, Chunavad in the list of witnesses and issue summons to the Sub-Registrar, Chunavad. All pending application stand disposed of.