Andhra HC (Pre-Telangana)
Sunder vs Mohd. Ismail And Anr. on 3 March, 2004
Equivalent citations: AIR2004AP538, 2004(3)ALD318, 2004(3)ALT661, AIR 2004 ANDHRA PRADESH 538, (2004) 3 CIVLJ 841, (2004) 3 CIVILCOURTC 633, (2004) 3 ANDHLD 318, (2004) 3 ANDH LT 661
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT B. Sudershan Reddy, J.
1. This Civil Revision Petition filed under Article 227 of the Constitution of India, is directed against the order dated 8-9-2003 made in E.A. No. 365 of 2003 in E.P. No. 60 of 2003 on the file of the learned XI Junior Civil Judge, City Civil Court, Secunderabad.
2. The petitioner in the said E.A. is the petitioner in this civil revision petition. The learned trial Judge rejected the application filed by the petitioner herein under Order XVI, Rule 6 read with Section 151 of the Code of Civil Procedure to summon the document viz., the letter of consent dated 10-6-1999 from M/s. Modern Garments, Bangalore. The said letter is purported to have been given by the 1st respondent-decree holder to M/s. Modern Garments, Bangalore. The learned trial Judge after a very elaborate consideration of the matter came to the conclusion that the very existence of the consent letter dated 10-6-1999 itself is doubtful. Having regard to the totality of the facts and circumstances of the case, the learned Judge came to the conclusion that the said consent letter alleged to have been given by the 1st respondent-decree holder in favour of M/s. Modern Garments, Bangalore, is not required to be summoned for adjudication of the claim petition filed by the petitioner herein in E.A. No. 244 of 2003.
3. In order to consider as to whether the impugned order suffers from any incurable legal infirmities and errors apparent on the face of the record requiring our interference in exercise of our extraordinary jurisdiction under Article 227 of the Constitution of India, we consider it appropriate to refer to a few relevant facts.
4. Admittedly, the 1st respondent herein is the landlord of the premises bearing No. 1-6-51, Parklane, M.G. Road, Secunderabad (hereinafter referred to as 'the said premises'). The said premises was leased out to the 2nd respondent herein under a registered lease deed dated 5-4-1974. It is not necessary for the purpose of disposal of this civil revision petition to refer the terms and conditions of the lease deed. Suffice it to note that the 2nd respondent was conducting the business in the name and style of 'Variety Hosieries'.
5. The 1st respondent herein filed O.S. No. 530 of 1993 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad, seeking eviction of the 2nd respondent from the said premises. The said suit ended in a compromise vide compromise decree dated 27-1-1994 under which the 2nd respondent is required to vacate the said premises and handover the possession thereof to the 1st respondent-owner by 31-3-2003 and he shall pay rent at the rate of Rs. 5,000/-per month with effect from 1-4-1993. Further, the terms and conditions of the Memorandum of Compromise recorded by the Court expressly prohibited the 2nd respondent from subletting or parting with the possession of the demised premises. Suffice it to note that the 1st respondent had agreed under the compromise decree to concede ten years period in order to enable the 2nd respondent to vacate the premises and handover the same.
6. The fact remains that the 2nd respondent continued to remain in possession even after 31-3-2003 and did not vacate the said premises. The 1st respondent filed E.P. No. 60 of 2003 in O.S. No. 530 of 1993 on the file of the learned XI Junior Civil Judge, City Civil Court, Secunderabad, for execution of the compromise decree.
7. The petitioner herein is none other than the cousin brother of the 2nd respondent. It is the case of the 1st respondent that the 2nd respondent in order to defeat his valuable rights under the compromise decree set up the petitioner herein to file a claim petition in E.A. No. 244 of 2003 in E.P. No. 60 of 2003 wherein the petitioner has contended that the premises was leased out to him on 9-3-1975 under a lease agreement executed by the 2nd respondent herein on a monthly rent of Rs. 950/-per month. It is the specific case of the petitioner that the 1st respondent had also consented to the said lease in his favour by the 2nd respondent and there has been no objection to the sublease and, therefore, by the lease agreement dated 9-3-1975 between the 2nd respondent and himself, he continues to be in possession as lessee of the demised premises. The sum and substance of the case of the petitioner in the claim petition is that the compromise decree dated 27-1-1994 is not binding on him and since he is in actual possession and enjoyment of the said premises, he cannot be dispossessed in execution of the compromise decree. We do not wish to say anything further in this regard since the claim petition is yet to be adjudicated and disposed of by the learned trial Judge. The fact remains that the 1st respondent herein filed a detailed counter opposing the claim petition.
8. During the trial of the said claim petition, the petitioner herein filed E.A. No. 365 of 2003 purporting it to be under Order XVI, Rule 6 read with Section 151 of the Code of Civil Procedure with a prayer to summon the letter of consent dated 10-6-1999 said to have been given by the 1st respondent in favour of the petitioner and the same to be summoned from M/s. Modern Garments, Bangalore. The case set up by the petitioner is that he was conducting his business with the consent of the 1st respondent as sub-lessee and that for the purpose of the business transaction with M/s. Modern Garments, Bangalore, the petitioner has obtained the consent letter dated 10-6-1999 from the 1st respondent which according to him was a prerequisite for appointing him as a distributor of M/s. Modern Garments, Bangalore. Shorn of all the details, the said consent letter dated 10-6-1999 alleged to have been executed by the 1st respondent is itself a proof of the consent given by the 1st respondent for the transaction of the sub lease between the petitioner and the 2nd respondent. In order to establish his case, the petitioner had chosen to file such an application to summon the said consent letter dated 10-6-1999 from M/s. Modern Garments, Bangalore.
9. It is needless to observe that the 1st respondent herein filed a detailed counter inter alia contending that no such letter has been ever executed by him in favour of the petitioner. The 1st respondent in toto denied the execution of any such consent letter. On the other hand, the respondent contended that the petitioner is set up by the 2nd respondent in order to frustrate the execution of the compromise decree obtained by him against the 2nd respondent. The petitioner is none other than the cousin brother of the 2nd respondent. Both of them have colluded together in order to deprive the valuable rights accrued to him under the compromise decree, is the case of the 1st respondent set up by him before the Trial Court.
10. The learned trial Judge after an elaborate consideration of the matter and referring to all the relevant facts and circumstances, came to the conclusion that the application filed by the petitioner herein lacks bona fides and the same has been filed only to protract the proceedings in the claim petition.
11. In this civil revision petition the learned Counsel for the petitioner appears to have contended before the learned Single Judge that it was not open for the learned trial Judge to go into the question as to the relevancy, genuineness or otherwise of the document sought to be summoned and the learned trial Judge ought to have automatically allowed the application and summoned the document. The argument was whether the document is a relevant one or not, can be considered by the Court only after its summoning and not at the stage of summoning of the document itself. The learned Judge having referred to the decision in, Chekka Krishna Prasad v. Kotha Appa Rao, , wherein this Court took the view that the question of relevancy and validity of the documents to be summoned may have to be decided after they are tendered in evidence and not at the stage of summoning the documents, found the same to be in conflict with the decision rendered by another learned Single Judge of this Court in G.K. Murthy v. B.R. Rao, , wherein it was held that the Court in exercise of its inherent jurisdiction may refuse to issue summons in an application under Order XVI, Rule 1 of the Code of Civil Procedure, in those cases where it is satisfied that the application filed was not bona fide one or was vexatious or granting the application would result in abuse of process of Court, referred the issue for resolution by a Division Bench of this Court. That is how the matter is placed before us.
12. We have already noticed the facts in detail leading to the filing of the application by the petitioner under Order XVI Rule 6 read with Section 151 of the Code of Civil Procedure. The learned Counsel for the petitioner reiterated the same contention before us that once an application is filed to summon to produce a document, the same is required to be ordered by the Trial Court without entering into any debate as to the relevancy or otherwise of the summoned document. We are unable to accede to the submission made by the learned Counsel for the petitioner. The acceptance of such a contention, in our considered opinion, would convert the judicial forum of a Court of law into a Post Office. That the Court while dealing with an application filed under Order XVI, Rule 6 of the Code of Civil Procedure is required to satisfy itself that the application was a bona fide one and not a vexatious one granting of which would result in abuse of process of the Court. The Court in exercise of its inherent jurisdiction is entitled to take all the relevant facts and circumstances and if it is satisfied that the application has been filed only to protract the proceedings and the ordering of which may result in serious injustice, is entitled to dismiss the application. A plain reading of Order XVI, Rule 6 does not suggest that the application is required to be ordered automatically without considering the bona fides of the application. The learned Counsel relied upon the expression used in Rule 6 Order XVI "any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced", in support of his submission that the compliance is an automatic one. The construction suggested by the learned Counsel for the petitioner is not acceptable for the simple reason that Rule 6 declares that the person who is summoned to produce a document without being summoned to give any evidence is entitled to produce a document without being personally present and such production shall be deemed to have complied with the summon issued by the Court requiring production of the document. Nothing beyond that. There is no provision brought to our notice, which compels any Court to order an application automatically and summon the document whenever sought for by any party before the Court.
13. In our considered opinion, the learned trial Judge, rightly exercised the jurisdiction vested in him and in the facts and circumstances came to the right conclusion that the attempt on the part of the petitioner to summon the consent letter dated 10-6-1999 is nothing but an attempt to protract the litigation. The learned Judge rightly doubted the existence of such a consent letter alleged to have been given by the 1st respondent in favour of the petitioner.
14. The 1st respondent with a view to avoid multiplicity of proceedings appears to have agreed to grant ten long years to the 2nd respondent herein for his eviction from the said premises and yet, to realise the fruits of the decree. The facts are tell tale and are stranger than fiction. We are deeply disturbed the way the 2nd respondent and the petitioner put together had chosen to obstruct the legal process.
15. The next question that falls for consideration is whether the order of the Trial Court suffers from jurisdictional error apparent on the face of the record requiring our interference under Article 227 of the Constitution of India ?
16. The Supreme Court in Surya Dev Rai v. Ram Chander Rai, , after a detailed survey of the entire case law as to the nature of supervisory jurisdiction of this Court under Article 227 of the Constitution of India observed that the supervisory jurisdiction is exercised only for the purposes of keeping the subordinate Courts within bounds of their jurisdiction. The Supreme Court observed "When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction." The Supreme Court further held that the supervisory jurisdiction is not available to correct mere errors of fact or of law unless the error is manifest and apparent on the face of the proceedings, such as when it is based on clear ignorance or utter disregard of the provisions of law, and thereby resulted in grave injustice or gross failure of justice. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called grossly patent. The Apex Court cautioned that the High Court in exercise of its supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
17. In the instant case, the order of the Trial Court is not vitiated by any error apparent on the face of the record. The Trial Court came to the right conclusion that the application under Order XVI, Rule 6 to summon the consent letter from M/s. Modern Garments, Bangalore, is nothing but a device adopted by the petitioner in collusion with the 2nd respondent only in order to stall the further proceedings in the claim petition. The Civil Court will be well within its limits to dismiss any frivolous or vexatious applications and is not bound to order any and every application including the application to summon the documents unless it is convinced that the application is a bona fide one.
18. For the aforesaid reasons, the civil revision petition fails and shall accordingly stand dismissed with costs.
19. The learned trial Judge is directed to dispose of the claim petition preferably within three months on day-to-day basis without granting any unreasonable adjournment to either of the parties.