Punjab-Haryana High Court
M/S Ifb Industries Limited vs M/S Jbm Auto Components Ltd on 26 March, 2014
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.2233 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.2233 of 2014
Date of Decision:- 26.3.2014
M/s IFB Industries Limited
......Petitioner
Versus
M/s JBM Auto Components Ltd.
.....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Vikas Bahl, Senior Advocate with
Mr.Mayank Mathur, Advocate for the petitioner.
MEHINDER SINGH SULLAR, J. (Oral)
The challenge in this revision petition, preferred by M/s IFB Industries Limited petitioner-defendant-company (for brevity "the defendant-company"), is to the impugned order dated 5.3.2014 (Annexure P7), by virtue of which, the trial Court has dismissed its application (Annexure P6) to disallow the examination of witness (PW) Bikramjit Nag.
2. Having heard the learned Senior counsel for the petitioner- defendant-company, having gone through the legal provisions & record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this regard.
3. Ex facie, the argument of learned Senior counsel that since the trial Court has summoned PW Bikramjit Nag, along with other witnesses from Calcutta, in a very casual manner and without assigning any cogent Arvind Kumar Sharma 2014.04.05 14:22 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2233 of 2014 2 reason, so, the impugned order is liable to be set aside, is neither tenable nor the observations of Kerala High Court in case Jortin Antony and others v. Padmanabha Dasa Marthanda Varma and others 2000 AIR (Kerala) 369, are at all applicable to the facts of the present case, wherein, the plaintiffs filed a suit for specific performance on 4.10.1995. Defendant Nos.1 to 8 (therein) appeared and filed their written statement, whereas defendant No.9 did not appear to contest the suit. The contesting defendants in their written statement denied the claim of plaintiffs. The trial Court settled the issues on 17.10.1996. The plaintiffs sought to serve interrogatories on defendants No.1 to 8. The answers to the interrogatories were stated to have been furnished by the defendants. There was a complaint by the plaintiffs that the answers to the interrogatories were not complete and sought the striking off the defence in terms of Rule 21 of Order 11 of CPC. Thereafter, the plaintiffs (therein) fled a list of witnesses. In that list, they included the name of defendant Nos.1 to 8 as witnesses to be examined on their behalf. The application to summon defendant Nos.1 to 8 as witnesses filed by the plaintiffs was dismissed. On the peculiar facts and in the special circumstances of that case, it was held that the party to the suit has no right to summon the opposite party as a witness to be examined on his side. At the same time, it was held that the Court has the power when it thinks necessary to examine a party to the suit or to compel a party to the suit to give evidence so as to enable it (the Court) to effectively adjudicate upon the lis, as contemplated under the amended Order 16 Rule 14 CPC.
4. Sequelly, in case Union Bank of India v. Muthiah (1999) 1 MLJ 679, the Madras High Court has observed that "the practice of summoning opposite party as witness has to be deprecated as the same will Arvind Kumar Sharma 2014.04.05 14:22 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2233 of 2014 3 result to embarrass the judicial investigation." Possibly, no one can dispute with regard to the aforesaid judgments, but, to me, the same would not come to the rescue of the defendant-company in the instant controversy, for the reasons mentioned here-in-below.
5. As is evident from the record that initially, M/s JBM Auto Components Ltd. respondent-plaintiff-company (for short "the plaintiff- company") has instituted the civil suit (Annexure P2) for a decree of recovery of ` 10,27,622/- against the defendant-company. The defendant- company contested its claim, filed the written statement (Annexure P3), stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit. A Coordinate Bench of this Court permitted the plaintiff-company to place on record the documents, reliance whereof was placed by it, vide order dated 14.2.2013 (Annexure P4). Having framed the issues, arising out of the pleadings of the parties, by way of order dated 26.4.2011, the case was listed on 14.5.2011 for evidence of plaintiff- company on furnishing process fee, diet money and list of witnesses. In pursuance thereof, the plaintiff-company moved an application (Annexure P5) to summon its witnesses. The trial Court accepted it, permitted the plaintiff-company to examine the pointed witnesses and assessed the diet money/expenses of the witnesses. Consequently, the plaintiff-company furnished the process fee, deposited the diet money and other expenses of the witnesses. The trial Court summoned Bikramjit Nag, Joint Executive Chairman & Managing Director of the defendant-company along with the copies of purchase orders from January 1997 to March 2000, copy of minutes of meeting dated 26.12.2001 and the correspondence between the plaintiff-company and defendant-company, through mail and registered Arvind Kumar Sharma 2014.04.05 14:22 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2233 of 2014 4 post, besides summoning the other witnesses along with the relevant record mentioned in the application (Annexure P5).
6. Instead of appearing in the Court as a witness, the defendant- company moved an application (Annexure P6) to disallow the plaintiff- company to examine the indicated witnesses in the suit (who have already been summoned by the trial Court). The plaintiff-company refuted its prayer, filed the reply (Annexure P6 Colly), strongly denied all the allegations contained in the application and prayed for its dismissal. The trial Court dismissed the application of defendant-company, by virtue of impugned order (Annexure P7) in this context.
7. Such thus being the position on record, now the short and significant question, though important, which invites an immediate attention of this Court and arises for determination in the instant petition is, as to whether, in the wake of application (Annexure P5) filed by the plaintiff- company, the trial Court has the jurisdiction to summon the witnesses (PWs) mentioned therein or not ?
8. Having regard to the lengthy contentions of learned Senior counsel for the petitioner, to my mind, the answer must obviously be in the affirmative.
9. As is clear that Order 16 CPC deals with the furnishing of list and to summon the witnesses. Order 16 Rule 1 (2) & (3) postulates that 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 and 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 Arvind Kumar Sharma 2014.04.05 14:22 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2233 of 2014 5 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. Sequelly, Rule 7-A further posits that the Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.
10. A conjoint reading of the scheme of Order 16 CPC would reveal that the Court has the vast power to allow a party to summon the witnesses in order to effectively adjudicate upon the case, notwithstanding the fact that the witnesses are not residing with the jurisdiction of the Court, as envisaged in proviso to Rule 19 of Order 16 CPC. Likewise, the mere fact that the plaintiff-company has not mentioned the names of witnesses and documents produced in its plaint, ipso facto, is not a ground, muchless cogent, to negate the plea to summon its witnesses as the plaintiff-company was not legally required to mention the names of witnesses and the evidence/documents sought to be produced in the plaint, as contrary urged on behalf of the defendant-company.
11. As indicated here-in-above, in the present case, the trial court has summoned the witnesses of the plaintiff-company mentioned in its application (Annexure P5). Once, the trial Court has summoned its witnesses on furnishing process fee, depositing diet money and their expenses, in that eventuality, the defendant-company has no legal right to move an application (Annexure P6) to stop their (PWs) examination in the Court. PW Bikramjit Nag is not above the law of the land and I fail to understand as to why he is feeling shy in appearing in the Court to reveal the truth. Moreover, the delay in this regard cannot alone be attributed to the Arvind Kumar Sharma 2014.04.05 14:22 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2233 of 2014 6 plaintiff-company as it was caused on account of service of the defendant- company, as depicted in the impugned order (Annexure P7). The defendant- company appears to have filed the application in order to delay the disposal of the suit and to prolong the agony of the plaintiff-company. Therefore, the pointed contrary submissions of learned Senior counsel for petitioner- defendant-company "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
12. Not only that, the trial Court has correctly dismissed the indicated application of the defendant-company, by means of impugned order (Annexure P7), which, in substance, is as under (para 5):-
"The prayer of the defendant is that plaintiff is not entitled to summon the witness from Calcutta and in this regard, counsel has referred the Order under 16 Rule 19 of CPC. I have considered the prayer of the counsel for the defendant. Plaintiff filed an application for summoning of witnesses and this court has allowed the application after assessing the diet money of the witnesses. Plaintiff therefore has summoned the witnesses in compliance of the order of the court. The witnesses are bound to appear in the court as plaintiff has already deposited the diet money. It is also worthwhile to mention here that issues in this case were framed on 26.4.2011 and the sufficient time has already been elapsed as the case was filed in the year 2004. On the last date of hearing, when the case was fixed for examination of the plaintiff's witness, he was partly examined and his cross examination was deferred on the request of learned counsel for defendant. This court has made all efforts to effect the service to the defendant company as the defendant could not appear at the earliest. The only delay caused due to late service of defendant. This court, therefore, is of the view that plaintiff has to be given reasonable opportunities to conclude their evidence and at the same time, defendant should also make efforts to cross examine the witnesses without seeking the adjournments in order to dispose of the matter as this case has already become old."
13. Meaning thereby, the trial Court has examined the matter in right perspective and recorded the cogent grounds in this relevant connection. Such order, containing valid reasons, cannot legally be interfered with, in exercise of superintendence jurisdiction of this Court Arvind Kumar Sharma 2014.04.05 14:22 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2233 of 2014 7 under Article 227 of the Constitution of India, unless & until, the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner, so, the impugned order (Annexure P7) deserves to be and is hereby maintained in the obtaining circumstances of the case.
14. No other point, worth consideration, has either been urged or pressed by the learned senior counsel for the petitioner.
15. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of main suit, as there is no merit, therefore, the instant petition filed by the petitioner-defendant-company is hereby dismissed as such with costs.
16. Needless to mention that nothing observed here-in-above would reflect on the merits of the case, in any manner, as the same has been so recorded for the limited purpose of deciding the present petition only.
Sd/-
(Mehinder Singh Sullar) Judge 26.3.2014 AS Whether to be referred to reporter ? Yes/No Arvind Kumar Sharma 2014.04.05 14:22 I attest to the accuracy and integrity of this document Chandigarh