Andhra HC (Pre-Telangana)
D. Ram Mohan Rao vs Sridevi Hotels Pvt. Ltd. Rep. By ... on 16 September, 2005
Equivalent citations: 2005(6)ALT712
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. This Revision Petition is directed against the order dated 9-7-2004 in I.A.No. 550 of 2003 in O.S.No. 34 of 2002 on the file of the Court of I-Addl. District Judge, Nizamabad.
2. The revision petitioner is the defendant in the suit, whose application filed under Order 16 Rule 6 of C.P.C. to summon the Income-Tax Returns of the 1st plaintiff from the Joint Commissioner, Income-Tax was rejected by the Court below. The respondents are the plaintiffs.
3. For the sake of convenience, the parties shall hereinafter be referred to as they were arrayed in the plaint.
4. The facts, in brief, are as under:
The respondents herein filed O.S.No. 34 of 2002 seeking a decree for eviction of the defendant/Revision petitioner from the plaint schedule premises and for recovery of rents alleged to be due. The case of the plaintiffs was that the plaint schedule premises was leased out to the defendant under a Registered Lease Deed, dated 11-4-2001 for the purpose of running a hotel. The lease was for a period of four years and the agreed lease amount was Rs. 5,200/- per day. It was alleged that the defendant paid the rents upto 28-3-2002 and thereafter committed default in spite of repeated demands made by the plaintiffs. The plaintiffs got issued a legal notice dated 10-5-2002 calling upon the defendant to vacate the premises by 31-5-2002. Having received the said notice, the defendant got issued a Reply dated 25-5-2002 denying all the allegations and claiming that on a request made by the plaintiffs he advanced a sum of Rs. 10,46,050/- on 29-6-2001 and a further sum of Rs. 85,950/- on 30-6-2001. The plaintiffs disputed the said plea of the defendant and filed the suit contending that the sum of Rs. 11,32,000/- paid by the defendant was towards the sale proceeds of empty Beer bottles and hotel scrap available in the premises at the time of granting the lease and therefore the same cannot be adjusted towards the daily rent as claimed by the defendant.
5. The defendant filed a written statement specifically pleading that the plaintiffs were in dire need of money for repaying the loan amount to the A.P. State Finance Corporation and since the hotel premises was under a threat of seizure and putting for auction for realization of the loan amount, the plaintiffs filed W.P.No. 3374 of 2001 in which a conditional order was passed on 11-4-2001 directing them to deposit the amount due within the specified period. In the circumstances, the Managing Director of the 1st plaintiff requested the defendant for a loan and accordingly the defendant paid a sum of Rs. 5,00,000/- to the plaintiffs on 17-4-2001 as advance rent. That apart, Rs. 10,46,050/-was paid to A.P. State Finance Corporation, Nizamabad through a Demand Draft dated 29-6-2001. The defendant also paid to the plaintiffs a sum of Rs. 85,950/- towards advance rent by way of cheque dated 30-6-2002. Thus, the defendant paid a total sum of Rs. 16,32,000/- towards advance rent/ loan. The plaint averment that the said amount was paid towards the amount realized by the defendant by sale of empty beer bottles and hotel scrap belonging to the plaintiffs which was available in the hotel premises at the time of granting lease was specifically denied. It was also contended that there was no proper termination of lease and therefore the suit claim for eviction and damages was misconceived and untenable.
6. On the basis of the above plea raised in the written statement, the defendant has also made a counter-claim for recovery of a sum of Rs. 11,32,000/- together with interest thereon at the rate of 24% per annum.
7. It is to be noted that along with the main suit, the plaintiffs filed I.A.No. 1894 of 2002 seeking a direction to the defendant to deposit arrears of rent as well as daily rents in the Court. Though the defendant opposed the said petition, the same was ordered with a direction to the defendant to deposit rent at the rate of Rs. 5,200/- per day into the Court till the final disposal of the suit. Aggrieved by the said order, the defendant preferred a Revision Petition in which this Court modified the order and directed the defendant to deposit the amounts every week instead of every day. However, the defendant failed to comply with the said order and therefore the plaintiffs filed I.A.No. 2936 of 2002 with a prayer to strike off the defence of the defendant. The said petition was allowed by the Court below striking off the defence of the defendant and the said order was confirmed by this Court in a Revision Petition.
8. While the suit was coming up for trial, the defendant filed I.A.No. 550 of 2003 under Order 16 Rule 6 read with Section 151 of C.P.C. with a prayer to summon the Income-Tax Returns of the 1st plaintiff Company for the years 1997-2001 from the Joint Commissioner, Income-Tax, Nizamabad. In the affidavit filed in support of the said application, it was stated that since the 1st plaintiff has been submitting the income-tax returns to the Income-tax Department every year, it must be showing the total quantity of the liquor purchased and the amount realized from the sale of scrap and empty beer bottles and as such the said record is very much essential to prove the case of the defendant that the payment of Rs. 11,32,000/- made by the defendant was (sic. not) towards the amount realized by sale of the empty beer bottles and old hotel scrap. The said application was opposed by the plaintiffs stating that they did not sell the scrap and empty bottles. It was also stated that they submitted Income-Tax Returns only for the period 1997-98 to 1999-2000 and for the period subsequent to 1-4-2000 they have not filed the Income-Tax returns. Since admittedly the lease in question commenced from 1-4-2001, the Income-tax returns prior to 1-4-2001 are irrelevant for the purpose of the suit claim and the petition being misconceived is liable to be dismissed.
9. The Court below, having heard both the parties, by order dated 9-7-2004, dismissed the petition holding that the documents sought to be summoned were irrelevant and it is nothing but an attempt to protract the proceedings. It was also observed that since the defence of the defendant was struck off by virtue of the orders in I.A.No. 2936 of 2002 which was also confirmed in Revision by the High Court, the plea of the defendant that the documents sought to be summoned were necessary to prove his case could not be accepted and he cannot be permitted to present his defence either directly or in the form of suggestions put to the witnesses of the plaintiffs. Aggrieved by the said order, the defendant filed this Revision Petition.
10. I have heard the learned Counsel for both the parties and perused the material on record.
11. The learned Counsel for the petitioner contended that the Court below committed an error in rejecting the application on the ground that the documents in question are irrelevant. According to the learned Counsel, the question of relevancy can be decided only after the documents are produced and therefore the Court below was not justified in dismissing the application at the threshold assuming that the documents are irrelevant. The learned Counsel also vehemently contended that the fact that the defence of the defendant was struck-off is immaterial since the counter-claim made by the defendant is nothing but a counter-suit and the same still survives and for the purpose of establishing the counter-claim, the defendant is entitled to seek summoning of the documents in question.
12. On the other hand, the learned Counsel for the respondents contended that the relevancy of the documents in question is one of the requirements to be satisfied under Rule 129 of the Civil Rules of Practice and since the defendant failed to make out any case to establish the relevancy of the documents in question, the Court below has rightly dismissed the application. He submits that the impugned order which is in accordance with law does not warrant interference by this Court on any. ground whatsoever.
13. In the light of the material on record, it is clear that the defence of the defendant/ Revision petitioner was struck-off in I.A.No. 2936 of 2002. Admittedly, the said order has become final. However, as rightly contended by the learned Counsel for the petitioner, the counter-claim made by the defendant under Order 8 Rule 6-A of C.P.C. is nothing but a counter-suit and therefore the same would undoubtedly survive irrespective of the fact that the defence of the defendant was struck-off. That apart, as held by the Apex Court in Modula Indira v. Kamakshya Singh Deo, law is well settled that even after striking-off of the defence, the defendant is still entitled to cross-examine the witnesses of the plaintiff and address arguments on the basis of the plaintiff's case. There is nothing in law to preclude him from demonstrating to the Court that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute.
14. Hence, undoubtedly, the Court below was not justified in rejecting the application on the ground that the order in I.A.No. 2936 of 2002 has become final.
15. However, I find force in the submission of the learned Counsel for the respondents that Order 16 Rule 6 of C.P.C. does not apply to the relief sought in I.A.No. 550 of 2003. Order 16 Rule 6 of C.P.C. runs as under:
"Order 16 Rule 6 - Summons to produce document:-
Any person may be summoned to produce a document, without being summoned to give evidence; and 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 instead of attending personally to produce the same".
16. As can one seen, Rule 6 of Order 16 of C.P.C. enables he Court to summon any person to produce a document without being summoned to give evidence. Obviously, the said provision does not attract to a situation where the party himself seeks to summon production of a particular document. Hence, the decision in Ch. K. Prasad v. K. Appa Rao, cited by the learned Counsel for the petitioner is of no assistance to support his contention that the relevancy of documents cannot be scrutinized at the time of summoning the same.
17. On the contrary, Rule 129 of Civil Rules of Practice specifically prescribes the procedure for production of records in the custody of a public officer other than a Court. The said Rule, to the extent it is necessary, runs as under;
"129. Production of records in the custody of a Public Officer other than a Court:
(1) A summons for the production of records in the custody of a Public Officer other than a Court shall be in Form No. 23 and shall be addressed to the Head of the Office concerned and in the case of a summons to a District Registrar or Sub-Registrar of Assurances, it shall be addressed to the Registrar or Sub-Registrar in whose office, or sub-office, as the case may be, the required records are kept.
Provided that, where the summons is for the production of village accounts, including field measurement books, such summons shall be addressed to the Tahsildar or the Deputy Tahsildar in independent charge as the case may be.
Provided further that when the summons is for production of records in the custody of high dignitaries like the Speaker of the Lok-Sabha or State Legislative Council etc., the summons shall be in the form of a letter of request in Form No. 23-A. (2) Every application for such summons shall be made by an affidavit setting out (1) the document or documents the production of which is required; (2) the relevancy of the document or documents; (3) in cases where the production of a certified copy would answe, the purpose, whether application was made to the proper officer for a certified copy or copies and the result of such application.
(3) No Court shall issue such summons unless it considers the production of the original necessary or is satisfied that the application for a certified copy has been duly made and has not been granted. The Court shall in every case record its reasons in writing and shall require the applicant to deposit in Court, before the summons is issued, to abide by the order of the Court, such sum as it may consider necessary to meet the estimated cost of making a copy of the document when produced.
(4)...
(5) ...
(6) ...
18. As per Sub-rule (2) of Rule 129 of Civil Rules of Practice, every application for such summons shall be made by an affidavit setting out the document the production of which is required, the relevancy of such document and in cases where the production of a certified copy would answer the purpose, whether such application was made to the proper officer and the result of such application. That apart, Sub-rule (3) also makes it clear that before issuing the summons the Court shall be satisfied that the production of such original document is necessary and shall record its reasons in writing. In the alternative, it has to be established to the satisfaction of the Court that the application for a certified copy has been duly made and has not been granted. The said requirements are also clear from the language of Form No. 23 in which the summons have to be issued by the Court under Sub-rule (1) for production of the records in the custody of a Public Officer.
19. Admittedly, in the case on hand, the defendant failed to take any steps for obtaining the certified copies of the documents in question from the concerned officer. As a matter of fact, his affidavit was totally silent on the said aspect. Though the learned Counsel for the petitioner submits that it is not possible for a third party to obtain the certified copies of the Income-Tax Returns of a particular assessee, I am unable to accept since unless such an application is made and rejected, it cannot be assumed that it is impossible to obtain the certified copies.
20. That apart, as already expressed above, in the light of the language of Rule 129 of Civil Rules of Practice, it cannot be said that it is not open to the Court to consider the relevancy of the documents in question at the time of considering the applications for summoning the documents and that it is a matter for consideration only when the documents are tendered in evidence. No other decision has been cited to support the said contention of the learned Counsel for the petitioner.
21. For the aforesaid reasons, I am unable to hold that the Court below has committed any error in rejecting the application in question. The impugned order cannot be said to be vitiated on account of any patent error of fact or law, warranting interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
22. The Revision Petition is devoid of any merit and the same is accordingly dismissed. No costs.