Madras High Court
Sethurajan vs Rajalakshmi on 21 September, 2012
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.09.2012 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL CIVIL REVISION PETITION (PD) NO.1395 of 2010 and M.P.NO. 1 OF 2010 Sethurajan ... Petitioner Vs Rajalakshmi rep. by her Power Agent V.Ramadass ... Respondent PRAYER: This Civil Revision Petition is filed under Article 227 of Constitution of India against the order and decreetal order dated 12.10.2009 passed in I.A.No.436 of 2009 in O.S.No.9 of 2007 on the file of the learned District Munsif, Thiruthuraipoondi. For Petitioner : Mr. S.Sathiamurthi For Respondent : Served (No appearance) ORDER
The Petitioner/Defendant has filed the instant Civil Revision Petition as against the order dated 12.10.2009 in I.A.No.436 of 2009 in O.S.No.9 of 2007 passed by the Learned District Munsif, Thiruthuraipoondi.
2. The Learned District Munsif, Thiruthuraipoondi while dismissing the interlocutory application No.436 of 2009 in O.S.No.9 of 2007 on 12.10.2009, has, among other things, observed that 'the attestor of the document is to be examined to prove the execution of the document. If the attestor is not available, then, only the Court can allow other witness and further stated that attestor's signature is to be identified by any of known members. SRO, Thiruthuraipoondi is not an attesting witness and not competent to give evidence'.
3. The Learned Counsel for the Petitioner/Defendant contends that the trial Court while dismissing I.A.No.436 of 2009 has not assigned any valid and acceptable reasons and since it has exercised its jurisdiction in a irregular fashion. This Court has inherent powers to interfere with the same and allow the Civil Revision Petition to promote substantial cause of justice.
4. The Learned Counsel for the Petitioner/Defendant urges before this Court that the Will relied on by the Petitioner/Defendant relates to the year 1978 and no prejudice would be caused to any one by production of the Will dated 17.4.1978 from the Sub Registrar Office, Thiruthuraipoondi and indeed, minute details need not be gone at the stage of receiving the witness list as per Order 16 Rule 1 (3) of Civil Procedure Code.
5. A perusal of the averments in I.A.No.436 of 2009 (filed by the Petitioner/Defendant) indicates that the Petitioner/Defendant has prayed the trial Court for issuance of witness summon to Sub Registrar of SRO Office, Thiruthuraipoondi and also he must tender evidence in respect of Will dated 17.4.1978 of Ramu @ Ramu Pillai. (which has been registered at SRO, Thiruthuraipoondi) office in Book 3, Volume 64 at page 111 to 118 as document No.22, registered on 25.04.1978)
6. It is an admitted fact that after commencement of trial in the main suit in O.S.No.9 of 2007, after examination of plaintiff side witness, the present I.A.No.436 of 2009 has been projected by the Petitioner/Defendant to summon the Sub Registrar, Thiruthuraipoondi, SRO Office as witness.
7. A cursory perusal of the contents of affidavit in I.A.No.436 of 2009 filed by the Petitioner/Defendant discloses that owing to ill-health, he has been prevented to file the list of witnesses in time.
8. At this Juncture, this Court cites the Order 16 Rule 1 of Civil Procedure Code which runs as follows;
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 whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
9. Further, Order 16 Rule 3 of Civil Procedure Code envisages as under;
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.
10. It is to be noted that even if a party has not tendered the list of witnesses as per Order 16 Rule 1(1) of Civil Procedure Code within 15 days from the date of settlement of issues, he can make an application under Sub-Rule (3) of Rule 1 to summon and examine the witness, as opined by this Court. Further, a Court of Law ought not to leave the number of witnesses to be examined in the case to the wins and fancies of the parties. However, the number of witnesses to be examined in the case can be restricted by the Court after taking note of the requirement of facts and circumstances of a given case, which float on the surface.
11. Moreover, a Court of Law is not required to summon an individual to produce a document. As a matter of fact, a Court of Law has wide power and discretion to determine the relevancy/ necessity of the document to be produced and marked as an exhibit. Even refuse to summon a person to tender a document, if the application projected by him is not based on bona fide reason or vexatious one. An application/Petition filed by a litigant to issue notice/summons to the witness should exhibit the purpose, because the issuance of summon is not a routine and automatic one in the eye of Law. If a ground is made out for summoning a person as a witness than he can be called as a witness, to secure the ends of justice.
12. In the processual system of jurisprudence deliverance of substantial justice is a praise worthy affair. The approach of a Court of Law must not defeat the ends of justice or cause any protracted delay in a pending litigation. In deciding the number of witnesses, a Court of Law, generally is required to take into account the following factors;
(a) Character of litigation
(b) Number of issues required to be established
(c) Nature of the issues
(d) On whom the burden lies to proof a certain fact
(e) The particular purpose for which the concerned witness is required to be summoned.
13. From the ingredients of Order 16 Rule 3, it is latently and patently quite clear that for reasons to be recorded in I.A.No.436 of 2009, a Court below may allow a party to summon of any witness through Court or otherwise, if concerned party shows sufficient cause for the omission to mention the name of such witness in the said list. As a matter of fact, Order 16 Rule 1 which speaks of summoning of witness and the list of witnesses to be presented by a party, speaks of filing of the application not later than fifteen days after the date on which the issues are settled and the parties to present a list of witness before a Court of Law. In regard to the persons, though either summoned to give evidence or to produce document etc., the said provision, in the considered opinion of this Court is only directory in nature and it is not mandatory in character.
14. As far as the present case is concerned, the Petitioner/Defendant has assigned a reason that he is indisposed and therefore, he has not been in a position to file a list of witnesses (as seen from the averment made in I.A.No.436 of 2009 in para 2 of the affidavit filed by the Petitioner/Defendant). When a party makes an endeavor to substantiate his case by summoning a public witness like SRO of Sub Registrar Office and also prays permission of the Court to examine him as witness and to produce a particular document like Will etc., than without harping and technicalities its a duty of Court of Law to pass an order lenient in favour of a party to provide an adequate opportunity for him to prove his case in one manner or other.
15. At the time of granting permission, it is not for the Court of Law to go into the technicalities or niceties of the merits and demerits of the issues involved in the case. No doubt, it is true that the order refusing permission by a Court to summon a witness and permit him to mark a document cannot be agitated in a revision under Section 115 of the Civil Procedure code. Yet, if there is any material irregularity or patent illegality, this Court can exercise its parental supervision other a subordinate Court and rectify the irregularity/ mistake committed by it by interfering with the impugned order, in the interest of justice.
16. Accordingly, this Court opines that the Learned District Munsif, while dismissing I.A.No.436 of 2009 has gone into minutes details of the case and has assigned irrelevant reasons in his order in dismissing the I.A.No.436 of 2009, in the considered opinion of this Court, is not untenable and legal one. Consequently, this Court set aside the order passed in I.A.No.436 of 2009 and allow the Civil Revision Petition, to promote substantial cause of justice.
17. In the result, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A.No.436 of 2009 in O.S.No.9 of 2007 is set aside by this Court for the reasons assigned in this revision. Earlier on 20.09.2012, this Court has disposed of in CRP.PD.No.591 of 2010 by issuing a direction to the trial Court to dispose of the main suit in O.S.No.9 of 2007 on its file within a period of 3 months from the date of receipt of copy of this order (If there is no impediment to dispose of the same). It is made clear that the earlier direction issued by this Court in regard to the disposal of the suit O.S.No.9 of 2007 shall stand good, (if the said suit has not already been disposed of.) No costs. Consequently, connected miscellaneous petition is closed.
21.09.2012 Index : Yes/No Internet: Yes/No sms To The learned District Munsif, Thiruthuraipoondi.
M. VENUGOPAL.J, sms C.R.P.(PD) NO.1395 of 2010 and M.P.NO. 1 OF 2010 21.09.2012