No re-open and No summons to a witness = Other defendants field = I.A.No.2085 of 2013 under Section 151 of CPC praying to reopen the defendant’s side evidence to examine D.W.1 and I.A.No.2086 of 2013 under Order 16 Rule 1 read with Section 151 of CPC praying the Court to issue summons to defendant No.1 to give evidence as witness. whether the Court below is justified in dismissing the applications filed by the petitioners and whether the orders passed by the Court below warrant any interference of this Court under Article 227 of the Constitution of India?= "Order XVI - Summoning and Attendance of witnesses: Rule 1 - List of witnesses and summons to witnesses. (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses when they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of Sub-rule (2), summonses referred to in this rule may he obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).”= “Sub-rule (1) of Rule 1 of order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it t proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Sub-rule (2) requires that the parties seeking the assistance of the Court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is pro posed to be summoned. Sub-rule (3) confers discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of Order XVI. If a reference to Rule 22 of the High Court Rules is recalled at this stage, it merely re-enacts sub-rule (1) and sub-rule (2) of Rule 1 of Order XVI”. - (1) Under Order 16, Rule 1, Civil Procedure Code, it is the right of the party at any stage of the suit to make an application to the Court seeking that summons be issued to a witness either to give evidence or to produce documents. (2) The Court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit. (3) If the summons is not served by the adjourned date of the suit, the party who filed the application to issue the summons would take the risk. (4) If an application for adjournment is made at the instance of the party who applied under Order 16, Rule 1, Civil Procedure Code, it is for the Court to consider whether or not an adjournment should be granted. (5) The Court may not refuse to order an application under Order 16, Rule 1, Civil Procedure Code on the ground that the evidence, if produced, may not be of any help to the applicant. (6) Though Order 16, rule 1, Civil Procedure Code does not in terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16, rule 1, Civil Procedure Code, in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingencies the application must almost always be ordered”.= Another vital aspect which requires a reference at this juncture is that the 1st defendant earlier filed I.A.Nos.393, 396 and 398 of 2013 in O.S.No.115 of 2011 before the Court below to reopen the case, to call P.W.1 and D.Ws.1 to 4 and to permit him to file another written statement and the same were dismissed by the Court below on 5.6.2013 and the said orders were carried in C.R.P.Nos. 2926, 2927 & 2928 of 2013 and this Court dismissed the same by way of a common order and the operative portion of the said order reads as follows: “It is not disputed that the suit O.S.No.115 of 2011 was filed by 1st respondent in December, 2011, and a written statement has been filed by petitioner through a Counsel Sri K.Krishna Rao admitting the claim of the 1st respondent. Evidence was let in by the parties and chief-examination affidavit was also filed by the petitioner admitting the claim of 1strespondent. The trial concluded and the case is now coming up for arguments. It is not in dispute that the petitioner is a businessman and an educated person and not a person who is innocent or naive. It is difficult to accept the contention of the petitioner that he signed blank ledger papers and Vakalats and handed them over to 1st respondent to be utilized in O.S.No.10 of 2005. No reasonable prudent person would do such a thing as there is every possibility of such documents being misused. In O.S.No.10 of 2005, the petitioner has taken the stand that he has sold Ac.9-31 guntas in favour of Sandhya Reddy and Shylaja Reddy and this fact is not disputed by the petitioner. But in these applications filed by him in O.S.No.115 of 2011, he has stated that he intended to sell only Ac.7-31 guntas to them, that in the sale deed got prepared by 1strespondent and which was executed by petitioner in favour of Sandhya Reddy and Shylaja Reddy, the extent is incorrectly mentioned as Ac.9-31 guntas. This shift in stand is noticed by the Court below and it rightly held that the petitioner, having taken such a stand in O.S.No.10 of 2005, consciously took a similar stand in the present suit also. It held that by way of another written statement he cannot be permitted to take a contrary plea and it doubted the bona fides of the petitioner. It is also settled law that an admission made in the written statement cannot be allowed to be retracted by way of an amendment to the pleadings or by way of a fresh written statement. [See Heeralal V. Kalyanmal(1998(1) S.C.C. 278)]”. 18. The petitioners/defendants 2 to 4 filed the present application on 19.8.2013. The learned Judge while dismissing the applications categorically recorded valid reasons and this Court does not see any valid reason to disturb the said findings having regard to the facts and circumstances of the case. Taking into account the totality of the circumstances and the chronology of the events and dates and various Interlocutory Applications filed before the Court below and the C.R.Ps. filed by the parties to the litigation before this Court and in view of the reasons recorded by the Court below including the finding with regard to filing of I.A.No.398 of 2013 by the 1st defendant and the outcome of C.R.P.No.2926 of 2013 and taking into consideration the principles laid down by the Hon’ble Supreme Court and this Court in the judgments referred to above, this Court is of the opinion that there is no infirmity in the orders passed by the Court below and this Court deems it appropriate to dismiss the present C.R.Ps.
| CRP 4137 / 2013 | CRPSR 23748 / 2013 |
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published in http://164.100.12.10/hcorders/orders/2013/crp/crp_4137_2013.html
THE HON’BLE SRI JUSTICE A.V.SESHA SAI
C.R.P.Nos.4137 & 4138 of 2013
COMMON ORDER:
These two revisions, filed under Article 227 of the Constitution of India, arise out of one suit and as they are inter-related, these revisions are heard together and are being disposed of by this common order at the stage of admission, at the request of the learned counsel for petitioners and learned counsel for respondent No.1/plaintiff (caveator).
1. The facts and circumstances leading to the filing of the present revisions are as under:
2. The 1st respondent herein instituted a suit, being O.S.No.115 of 2011, on the file of Principal District Judge, Medak at Sangareddy against respondent No.2 and the petitioners herein arraying them as defendants 1 to 4 respectively, seeking the following reliefs:
“(i) To declare the plaintiff is the absolute owner and possessor of the suit schedule property i.e. land bearing Sy.No.41/U to an extent of Ac.2.00 gts situated at Kollur village, Ramachandrapur mandal, Medak district.
(ii) To grant perpetual injunction restraining the defendant No.2 to 4, any other persons claiming through them from interfering with peaceful and lawful possession of the plaintiff in respect of the suit schedule property.
(iii) To declare the registered sale deed dated 17.1.2007 in favour of defendant No.2 and consequently registered sale deed dated 15.3.2007 vide document No.6889/2007 executed by defendant No.2 in favour of defendant No.3 and 4 are void and not binding upon the plaintiff.
(iv) To award the costs of the suit.”
3. In the said suit, petitioners/defendants 2 to 4 filed two Interlocutory Applications i.e.
I.A.No.2085 of 2013 under Section 151 of CPC praying to reopen the defendant’s side evidence to examine D.W.1 and
I.A.No.2086 of 2013 under Order 16 Rule 1 read with Section 151 of CPC praying the Court to issue summons to defendant No.1 to give evidence as witness.
4. In the affidavits filed in support of the said I.As., the petitioners herein (defendants 2 to 4) stated that
the plaintiff instituted a suit in collusion with defendant No.1; having alienated the plaint schedule property in their favour, the defendant No.1 in collusion with plaintiff created the sale deed in favour of plaintiff only to deprive their rights; defendant No.1 filed written statement admitting the claim of the plaintiff and plaintiff examined himself as P.W.1 and did not examine any other to show his possession; defendants 3 and 4 are in possession and the Tahsildar mutated their names in the revenue records and issued Exs.B1 and B2 pattadar passbooks and title deed; defendant No.1 deliberately did not come into the witness box to speak the truth; the present suit being a suit for declaration of title, the common vendor (defendant No.1) is a proper person to be examined to put an end to the litigation.
5. Contending so, the defendants 2 to 4/petitioners herein prayed the Court to reopen the evidence on defendant’s side and to issue summons to defendant No.1 to give evidence.
6. Resisting the said Interlocutory Applications, the plaintiff/respondent No.1 filed counters and while denying the allegation of his collusion with defendant No.1,
the plaintiff stated that the petitioners (defendants 2 to 4) are colluding with defendant No.1 and are not in possession of the plaint property and
since the Tahsildar mutated his name, the defendant No.1 deliberately did not come into the witness box to speak the truth;
plaintiff filed I.A.No.1014 of 201 for injunction wherein the Court granted injunction holding that the plaintiff is in possession and enjoyment of the property and as against the said order, the petitioners herein preferred C.M.A.No.455 of 2012 before the High Court and in the said appeal, the High Court held that any rights derived under the decree which have been set aside are not valid and consequently the second respondent will not get any title to convey the same in favour of the appellant;
the said order was carried in appeal to the Hon’ble Supreme Court in S.L.P.No.32132 of 2012 and the Hon’ble Supreme Court confirmed the orders of the High Court; the petitioners suppressed the same and filed the present application;
defendant No.1 earlier filed evidence affidavit, but did not enter into witness box, as such the Court eschewed the evidence of defendant No.1; defendant No.2 filed evidence affidavit and was cross-examined on 11.12.2012 and after cross-examination of D.W.2, the petitioners herein felt that they are going to loose the litigation, upon that defendant No.1 was won over by the petitioners herein and changed their counsel;
thereafter defendant No.3 was examined as D.W.3 and the defendant No.1 failed to cross-examine D.W.3, so also D.W.4; defendant No.2 filed suit, being O.S.No.192 of 2005, before the Court of the Senior Civil Judge at Sangareddy and obtained exparte decree; on an application filed by defendant No.1 the same was set aside and on the failure of defendant No.1 to prosecute the same, it ended in dismissal for default; after the orders in C.M.A.No.445 of 2012, petitioners colluded with defendant No.1 and defendant No.2 filed an application to restore the suit O.S.No.192 of 2005 and he tried to obtain a decree by getting the same referred to Lok Adalat in order to overcome the order of this Court in C.M.A.No.445 of 2012; on coming to know about this collusion, plaintiff filed implead petition which is pending; petitioners played fraud on Court in instigating the defendant No.1 to file application to return the written statement and to permit him to file a separate written statement, making allegations against earlier Advocate, pretending himself as innocent person; defendant No.1 filed I.A.Nos.392, 396 & 398 of 2013 in O.S.No.115 of 2011 and were dismissed and the defendant No.1 filed C.R.P.Nos.2926, 2927 & 2928 of 2013 and the same were dismissed by the High Court; present applications are filed to get a favourable statement by the defendant No.1 and the petitioners herein are filing applications and taking adjournments with an intention to prolong the matter, as such they have no right to examine the defendant No.1 again.
7. Pleading so, the plaintiff/respondent No.1 herein prayed for dismissal of the Interlocutory Applications.
8. The Principal District Judge, Medak district at Sangareddy by virtue of an order dated 4.9.2013 dismissed I.A.Nos.2085 and 2086 of 2013.
9. Calling in question, the validity and legal acceptability of the said orders, the present revisions i.e. C.R.P.Nos.4137 and 4138 of 2013 have been filed, principally contending that the orders of the Court below are erroneous and that the plaintiff filed the suit in collusion with defendant No.1 and that the defendants 3 and 4 are in possession of the suit property and that the defendant No.1 is a crucial witness who knows the details of the subject matter and that their counsel did not cooperate and did not conduct the trial properly, as such they changed their counsel and filed the application and that the Court should have given an opportunity to the petitioners and should have summoned the defendant No.1 as witness for bringing the truth on record and for just adjudication of the suit.
10. Heard Sri K.Venumadhav, learned counsel for petitioners and Sri V.Srinivas, learned counsel for respondent No.1/plaintiff and perused the material available on record including the orders impugned in the present Civil Revision Petitions.
11. Reiterating the contents of the affidavit filed in support of the I.As., and the grounds of revisions before this Court, it is contended by the learned counsel for petitioners, Sri K.Venumadhav, that the Court below is not justified in passing the impugned orders and that the plaintiff filed the suit in collusion with defendant No.1 and that the defendant No.1 is a crucial witness who knows the details of subject matter and that no prejudice would be caused to the otherside.
12. Per contra, it is contended by the learned counsel for respondent/ plaintiff that the orders impugned in the present revisions do not warrant any interference of this Court under Article 227 of the Constitution of India and that the Court below rightly dismissed the applications by assigning cogent and valid reasons.
13. Now the points that arise for consideration of this Court are
whether the Court below is justified in dismissing the applications filed by the petitioners and whether the orders passed by the Court below warrant any interference of this Court under Article 227 of the Constitution of India?
14. The provision of law, which is germane and relevant for the purpose of resolving the controversy in the present revisions, is Order 16 Rule 1 of CPC, which reads as under:
"Order XVI - Summoning and Attendance of witnesses:
Rule 1 - List of witnesses and summons to witnesses.
(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses when they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of Sub-rule (2), summonses referred to in this rule may he obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).”
15. It is evident from the above provision of law that it is obligatory on the part of the person applying for under Order 16 Rule 1 of Code of Civil Procedure to show sufficient reasons and the power available to the Court under the said provision of law is discretionary and it is also open for the Court to refuse the relief prayed if no sufficient reasons are shown. At this juncture, it is relevant to refer to the judgment of this Court in GopalKrishna Murthy v. B.Ramchander Rao (died) and others[1] and at paragraph 10 of the said judgment, this Court held as under:
“A reading of the above authorities leads me to lay down the following propositions:
(1) Under Order 16, Rule 1, Civil Procedure Code, it is the right of the party at any stage of the suit to make an application to the Court seeking that summons be issued to a witness either to give evidence or to produce documents.
(2) The Court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit.
(3) If the summons is not served by the adjourned date of the suit, the party who filed the application to issue the summons would take the risk.
(4) If an application for adjournment is made at the instance of the party who applied under Order 16, Rule 1, Civil Procedure Code, it is for the Court to consider whether or not an adjournment should be granted.
(5) The Court may not refuse to order an application under Order 16, Rule 1, Civil Procedure Code on the ground that the evidence, if produced, may not be of any help to the applicant.
(6) Though Order 16, rule 1, Civil Procedure Code does not in terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16, rule 1, Civil Procedure Code, in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingencies the application must almost always be ordered”.
16. In Mange Ram v. Brij Mohan and others[2], the Hon’ble Supreme Court at paragraph 8 held as follows:
“Sub-rule (1) of Rule 1 of order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it t proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
Sub-rule (2) requires that the parties seeking the assistance of the Court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is pro posed to be summoned.
Sub-rule (3) confers discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
Rule 1A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of Order XVI.
If a reference to Rule 22 of the High Court Rules is recalled at this stage, it merely re-enacts sub-rule (1) and sub-rule (2) of Rule 1 of Order XVI”.
17. In the present case, the defendants 2 to 4 filed the instant applications at the stage of arguments.
Another significant aspect which needs to be mentioned at this juncture is that this Court in the earlier round of litigation in C.M.A.No.445 of 2012 by virtue of an order dated 17.7.2012 directed the Court below to dispose of the suit within a period of six months.
Another vital aspect which requires a reference at this juncture is that the 1st defendant earlier filed I.A.Nos.393, 396 and 398 of 2013 in O.S.No.115 of 2011 before the Court below to reopen the case, to call P.W.1 and D.Ws.1 to 4 and to permit him to file another written statement and the same were dismissed by the Court below on 5.6.2013 and the said orders were carried in C.R.P.Nos. 2926, 2927 & 2928 of 2013 and this Court dismissed the same by way of a common order and the operative portion of the said order reads as follows:
“It is not disputed that the suit O.S.No.115 of 2011 was filed by 1st respondent in December, 2011, and a written statement has been filed by petitioner through a Counsel Sri K.Krishna Rao admitting the claim of the 1st respondent. Evidence was let in by the parties and chief-examination affidavit was also filed by the petitioner admitting the claim of 1strespondent. The trial concluded and the case is now coming up for arguments.
It is not in dispute that the petitioner is a businessman and an educated person and not a person who is innocent or naive. It is difficult to accept the contention of the petitioner that he signed blank ledger papers and Vakalats and handed them over to 1st respondent to be utilized in O.S.No.10 of 2005. No reasonable prudent person would do such a thing as there is every possibility of such documents being misused.
In O.S.No.10 of 2005, the petitioner has taken the stand that he has sold Ac.9-31 guntas in favour of Sandhya Reddy and Shylaja Reddy and this fact is not disputed by the petitioner.
But in these applications filed by him in O.S.No.115 of 2011, he has stated that he intended to sell only Ac.7-31 guntas to them, that in the sale deed got prepared by 1strespondent and which was executed by petitioner in favour of Sandhya Reddy and Shylaja Reddy, the extent is incorrectly mentioned as Ac.9-31 guntas.
This shift in stand is noticed by the Court below and it rightly held that the petitioner, having taken such a stand in O.S.No.10 of 2005, consciously took a similar stand in the present suit also. It held that by way of another written statement he cannot be permitted to take a contrary plea and it doubted the bona fides of the petitioner. It is also settled law that an admission made in the written statement cannot be allowed to be retracted by way of an amendment to the pleadings or by way of a fresh written statement. [See Heeralal V. Kalyanmal(1998(1) S.C.C. 278)]”.
18. The petitioners/defendants 2 to 4 filed the present application on 19.8.2013.
The learned Judge while dismissing the applications categorically recorded valid reasons and this Court does not see any valid reason to disturb the said findings having regard to the facts and circumstances of the case.
Taking into account the totality of the circumstances and the chronology of the events and dates and various Interlocutory Applications filed before the Court below and the C.R.Ps. filed by the parties to the litigation before this Court and in view of the reasons recorded by the Court below including the finding with regard to filing of I.A.No.398 of 2013 by the 1st defendant and the outcome of C.R.P.No.2926 of 2013 and taking into consideration the principles laid down by the Hon’ble Supreme Court and this Court in the judgments referred to above, this Court is of the opinion that there is no infirmity in the orders passed by the Court below and this Court deems it appropriate to dismiss the present C.R.Ps.
19. For the reasons stated supra, the C.R.Ps are dismissed, confirming the impugned orders passed by the Court below.
As a sequel, the miscellaneous applications, if any, stand closed.
However, it is needless to observe that the trial Court shall dispose of the suit without being influenced by any of the observations made either in the impugned orders or in the present order. There shall be no order as to costs.
______________
A.V.SESHA SAI, J
Date: 27.9.2013
DA
THE HON’BLE SRI JUSTICE A.V.SESHA SAI
C.R.P.Nos.4137 & 4138 of 2013
27.9.2013
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