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2024 DIGILAW 1520 (KER)

Infant Jesus Church v. Southern Law Chambers

2024-11-20

M.A.ABDUL HAKHIM

body2024
JUDGMENT : Plaintiffs in a suit for eviction, arrears of rent and damages are the petitioners herein. Petitioners are challenging Ext.P12 order by which summons were issued to the Witnesses Nos.1 & 2 in Ext.P10 List of Witnesses dated 30.06.2024 submitted by the defendants in the suit. The Witness No. 1 is the Financial Administrator of Arch Diocese of Verapoly and Witness No. 2 is the Secretary, Corporation of Kochi. 2. When this Original Petition was admitted, interim stay was granted with respect to the summoning of Witness No.1. Both sides concede that the documents were produced by the Witness No.2 and hence the purpose of summoning the Witness No.2 is over. Hence the question to be considered in this Original Petition is whether Ext.P12 order issuing summons to Witness No.1 is sustainable or not. 3. I heard the learned counsel for the petitioners, Sri.K.L Joseph and the learned counsel for the respondents, Sri. Yash Thomas Mannully. 4. The learned counsel for the petitioners argued that Ext.P12 order is passed in violation of Order 16, Rule 1(2) of CPC which mandates that a party who is desirous of obtaining a summons against the witness shall state the purpose for summoning the witness in the Application. The learned counsel further contended that the defendant had earlier submitted Ext.P3 List of Witnesses dated 24.01.2024 including the very same Witnesses and this Court considered the necessity of summoning those witnesses in Ext.P9 judgment and in view of the finding in Ext.P9 judgment, the summoning of those witnesses in Ext.P2 does not arise. Learned counsel invited my attention to the findings in Ext.P9 judgment that the records are required to find out whether the respondents therein are the real owners in respect of the scheduled premises who are entitled to claim arrears of rent as also the damages; and that the petitioners at this stage has no right to challenge the title of the landlord for the reason that they had attorned the present land lords ever since 1993 up to 2003 until they vacated the premises and they have been paying rent all along up to 2018 to them recognizing as the land lords. 5. 5. On the other hand, the learned counsel for the respondents argued that the reason for summoning the Witnesses included in Ext.P10 Witness List is specifically stated in Ext.P11 Application and Ext.P9 judgment of this Court does not deal with the present contention raised by the defendants that the persons who have filed the claim do not have any authority to institute the plaint. 6. The learned counsel for the petitioner cited the decision of the Hon’ble Supreme Court in Kokkanda B. Poondacha and Others v. K.D Ganapathi and Another [ 2011(12) SCC 600 ] to substantiate the point that while summoning the witnesses a party has to disclose the relevancy of the evidence with regard to the issues arising in the suit. The learned counsel also relied on the decision of the High Court of Jammu and Kashmir in Yashpal Sawhney v. Gandotra Traders (M/s.) and Others [ AIR 1995 J&K 32 ] in which it is held that the purpose for summoning a witness is to be specifically stated and it is a necessary requirement and in the absence of such requirement the Court shall disallow the summoning of the witness. 7. On the other hand the learned counsel for the respondents cited the decision of the Hon’ble Supreme Court in Kailash v. Nanhku and Others [2005(4)SCC480] to substantiate the legal proposition that the procedural law shall not stand in the way of advancement of justice and a party shall not be denied opportunity to participate in the process of procedure dispensation. 8. I have considered the rival contentions. 9. Admittedly, during the pendency of the suit the plaint schedule premises were surrendered on 27.11.2023 by the defendants in favour of the plaintiffs. Order 16 Rule 1(2) CPC mandates that a party who is desirous of obtaining any summons for the attendance of any witness shall specifically state the purpose for which the witness is summoned. Ext.P10 is the List of Witnesses. No documents are sought from Witness No.1. It means that he is summoned only for the purpose of adducing oral evidence. In Ext.P11 Application, the purpose for summoning Witness No. 1 is not specifically stated. A mere statement is made that Witness No.1 is the Financial Administrator of Verapoly Archdiocese to which plaintiff No. 1 is subjugated in all aspects and whose permission and approval is required in all matters in both temporal and spiritual. In Ext.P11 Application, the purpose for summoning Witness No. 1 is not specifically stated. A mere statement is made that Witness No.1 is the Financial Administrator of Verapoly Archdiocese to which plaintiff No. 1 is subjugated in all aspects and whose permission and approval is required in all matters in both temporal and spiritual. It is not sufficient and it does satisfy the requirement of Order 16 Rule 1(2) CPC. The requirement of stating reasons for summoning witness in the Application seeking issuance of summons is for the purpose of avoiding summoning of unnecessary witnesses which are intended for the purpose of delaying and protracting the proceedings and thereby wastage of valuable judicial time. Such unnecessary summoning of witness would cause unwanted inconvenience to the witness also for no reason. Such inconvenience would be on the higher side if distant witnesses or public officers are unnecessarily summoned. Of course, the Court cannot curtail evidence and limit the number of witnesses to be examined by the parties. But the Court has every power to regulate the trial and satisfy itself the need for summoning a witness with reference to the issues before it before issuing summons to him on the application of the party. When an Application for issuance of summons to witness is filed under Order 16 Rule 1(2) CPC, the Trial Court has to ensure that the purpose for summoning is specifically stated in the Application and has to consider whether the said purpose is relevant for adjudication of the suit or proceeding before it, before issuing summons to such witness. Summons shall not be issued by the Court on casual Application made by the party without stating the purpose of summoning the witness. In the impugned Ext.P12 order, the Trial Court has not considered the purpose for summoning the Witness No.1 and 2 while issuing summons to them. 10. The Counsel for the respondents contended that the purpose for summoning the Witness No.1 is whether the person representing the plaintiff is having the required permission or not, though it is not stated specifically in Ext.P11 Application. It is clear from Ext.P9 judgment of this Court that earlier the defendants had disputed that the plaintiffs are not the real owners of the scheduled premises to claim arrears of rent and also damages. It is clear from Ext.P9 judgment of this Court that earlier the defendants had disputed that the plaintiffs are not the real owners of the scheduled premises to claim arrears of rent and also damages. This Court found that when the premises is surrendered to the plaintiffs and rent up to 2018 is paid by the defendants to them, the defendant has no right to challenge the title of the landlord. 11. The counsel for the petitioners points out that the petitioners have produced documents sufficient to prove that the person representing the 1st plaintiff is authorized to institute the suit. Whether the person representing the 1st plaintiff is authorized or not or whether the authorization is sufficient or not is a matter to be considered by the Trial Court at the time of hearing of the suit. If the Trial Court finds that there is no proper representation for the plaintiff No.1, the Trial Court can consider the same while passing final judgment. The defendants are free to raise all their arguments in this regard at the time hearing. For that purpose, there is no need to summon the Witness No.1 mentioned in Ext.P10 List of Witnesses. 12. I find that, Ext.P12 order was passed by the Trial Court without ascertaining the purpose for which the witnesses is summoned as mandated under Order 16 Rule 1(2) of CPC. Hence, Ext.P12 order is unsustainable so far as it relates to Witness No.1. The Original Petition is allowed and setting aside Ext.P12 order so far as it relates to Witness No.1. Since, the Witness No. 2 has already produced the documents, Ext.P12 order is sustained so far as it relates to Witness No.2.