Calcutta High Court (Appellete Side)
Smt. Binata Mitra vs Miss Tanisha Mitra And Another on 14 August, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No.1776 of 2019
Smt. Binata Mitra
Vs.
Miss Tanisha Mitra and another
For the petitioner : Mr. Pradyumna Sinha,
Mr. S. Chowdhury
For the opposite parties : Mr. Aniruddha Chatterjee,
Ms. R. Mitra,
Mr. S.K. Mal
Hearing concluded on : 06.08.2019
Judgment on : 14.08.2019
Sabyasachi Bhattacharyya, J.:‐
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1.The present revisional application arises from a suit filed by the present petitioner, primarily for declaration that a purported deed of gift dated April 2, 2011 is void and be delivered up and cancelled, for perpetual injunction restraining the defendants and their men and agents from transferring, alienating and/or creating any third‐party rights over the suit property and for ancillary reliefs.
2. In the said suit, the defendants/opposite parties filed an application under Order XVIII Rule 16 of the Code of Civil Procedure, for examination of one Hiranmoy Nag, an alleged witness of the said deed of gift, immediately, before the other witnesses. The defendants are also contesting the suit by filing a written statement.
3. The plaintiff/petitioner contested such application.
4. The trial judge, vide Order dated February 19, 2019, allowed the said application, fixing the next date for examination of the said witness as sought by the defendants/opposite parties. Being aggrieved with such order, the plaintiff/petitioner has preferred the instant application under Article 227 of the Constitution of India.
5. It is argued by learned counsel for the petitioner that the application for production of the witness was premature, since issues have not yet been framed in the suit. In this context, learned counsel for the petitioner cites the 3 judgment of Makhan Lal Bangal -vs‐ Manas Bhunia and Others [(2001) 2 SCC 652]. Placing particular reliance on paragraph no. 19 thereof, it is argued that the stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed. The correct decision of a civil lis largely depends on correct framing of issues. The decision of the case depends on the framing and recording of issues.
6. It is further argued that the medical certificate produced along with the application under Order XVIII Rule 16 of the Code was one year old and as such could not validate the claim of the ailment of the said witness.
7. Mere age of the witness, it is submitted, could not be the sole factor in granting such prayer.
8. That apart, learned counsel for the petitioner submits that the impugned order was cryptic and lacked in reasons.
9. Learned counsel for the defendants/opposite parties, on the other hand, argues that Order XVIII Rule 16 of the Code of Civil Procedure contemplates the taking of evidence of a witness out of turn at any time after the institution of the suit and is not confined to the stage after framing of issues.
10. In this context, learned counsel for the opposite parties cites several judgments as follows:
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(i) Namita Ghosh and anr. ‐vs‐ Piyali Adhikari(nee Banerjee)& anr. [2017 SCC OnLine Cal 15682]
(ii) Ram Dhir Prasad & anr. ‐vs‐ Ram Sewak Lal & ors. [AIR 1978 Patna 218]
(iii) Debadutta Pal ‐vs‐ Indumati Pal & Ors. [(1996) 2 ICC 481 (Ori)]
(iv) Daulat Jehangir Mehta ‐vs‐ Miss Piloo Dadabhoy Broacha & Ors. [2005 (1) Mh.L.J.623]
(v) Ramasamy Gounder & Ors. ‐vs‐ Muthayammal & Anr. [AIR 1999 Madras 363]
(vi) Channabasappa Y. Karaddi ‐vs‐ Hanamappa C. Karaddi [ILR 2003 Karnataka 1507]
11. Learned counsel for the opposite parties submits, on the basis of the said citations, that the High Courts of India have uniformly held that non‐framing of issues could not be a deterrent in the courts granting prayers for de bene esse evidence, which has to be granted on sufficient grounds having been made out.
12. An adjudication of the questions raised in the present revision requires an examination of the language of Order XVIII Rule 16 of the Code of Civil Procedure, which is set out below:
"Code of Civil Procedure, 1908:
Order XVIII:5
Rule 16: Power to examine witness immediately. ‐ (1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit."
13. There is no doubt that the provision gives the court power to direct evidence of a witness to be taken out of turn at any stage after institution of the suit, on the ground(s) stipulated therein being satisfied, being that a witness is about to leave the jurisdiction of the court, or other sufficient cause to the satisfaction of the court as to why his evidence should be taken immediately.
14. At the outset, it is worth mentioning that the judgment cited on behalf of the petitioner does not have much relevance in the context. The importance of framing of issues in a civil case is rather obvious and needs not be reiterated. However, that is besides the point involved in the case at hand. 6
15. In the present case, certain features stand out. First, that the proposed witness was 74 years of age and a senior citizen, which was the sole consideration of the trial court in granting the prayer for his examination out of turn.
16. The medical certificate, though one year old, indicates such ailments that would persist in an elderly person and would probably worsen with age. Atrial fibrillation, for example, and other issues with mobility, as mentioned in the medical certificate, are of such nature which deteriorate with age in almost every case.
17. However, the fact that the ailment indicated persisted for about a year itself, robs the prayer for de bene esse adduction of evidence of its immediacy. The ailments are not of such a nature which could worsen overnight. Even taking Namita Ghosh's case (supra) as a standard, conduct of trial of a suit may take many years, necessitating the evidence of such a witness being taken out of turn before trial. However, the ailment afflicting the proposed witness in the instant case is not of such urgency that his evidence has to be taken even before framing of issues, particularly since the defendants/opposite parties have already filed their written statement.
18. The other cases cited by the opposite parties undoubtedly have persuasive value. Yet, in some of the cases, the defendants had not yet filed their written statement, which was a factor in not waiting for issues to be framed before directing the evidence of the ailing witness to be taken out of turn. 7
19. In Ram Dhir Prasad (supra), the issue was whether the adduction of evidence by some witnesses out of turn, under Order XVIII Rule 16, could be treated to be the commencement of trial, which was answered in the negative. As such, the said case is not a precedent for the proposition at hand.
20. In Debadatta Pal (supra), as in Daulat Jehangir (supra), it was held that the court had power to direct evidence of a witness to be taken out of turn before framing of issues or even before filing of written statement. Such power of the court is beyond doubt and is evident from the language of the provision itself. What is to be seen is whether the court recorded satisfaction as to the conditions specified for doing so and there was such immediacy in the matter to grant adduction of evidence by a witness out of turn.
21. Ramasamy Gounder (supra) laid down the proposition that Order XVIII Rule 16 could be resorted to prior to commencement of evidence in due course, which is rather axiomatic and cannot be doubted.
22. In Channabasappa Y. Karaddi (supra), the Karnataka High Court held that the court can grant such leave if a party to the suit convinces the court that a material witness is about to leave the jurisdiction of the court or there is possibility of his not getting examined immediately.
23. In Daulat Jehangir (supra), the age of the witness was 92 years and in Channabasappa (supra), the witness was 84 years of age. 8
24. In the present case, the court of first instance proceeded only on the premise that the witness was a "senior citizen" which, by itself, could not be a reason as envisaged under Order XVIII Rule 16 of the Code of Civil Procedure. Age is merely a number in modern days of increased longevity and it depends on the facts and circumstances of each case as to what was the actual physical condition of a witness.
25. The trial court was very cryptic in reasoning and failed to record its satisfaction at all on the urgency required for an order to be passed permitting a witness to be examined out of turn. Even from the one‐year old medical certificate, although the deteriorating nature of the age‐related ailments can be assumed reasonably, yet the urgency required for the said witness to be called even before the issues were framed was missing from the impugned order.
26. However, it is now well‐settled that mere deficiency of reasons cannot deter a court sitting in judicial review from affirming a correct conclusion by the court below. This court, under Article 227 of the Constitution of India, is also entitled to mould the relief prayed for and granted by the trial court.
27. On a complete reading of the materials on record, it appears that the age (74 years) and ailments of the proposed witness, as borne out by the medical certificate produced in the court below, indicate that there is sufficient reason to direct evidence of the said witness to be taken out of turn. However, the 9 power of court to grant such relief even before the framing of issues, although existent, is not unfettered but qualified by the circumstances of each case. In the present case, the urgency is sufficient not to wait for commencement of trial, which may take considerable time in the present Indian context, yet it would be prudent to wait for the framing of issues to give a framework of the contours of the disputes involved, to facilitate proper adduction of evidence by the witness and to prevent an unnecessary recall later on; more so, since the written statement has already been filed by the defendants/opposite parties, thus completing the presentation of pleadings.
28. Accordingly, C.O. No. 1776 of 2019 is disposed of on contest by modifying the impugned order to the extent that the proposed defence witness, namely Shri Hiranmoy Nag, shall be examined in chief and cross‐examined out of turn, on a date or dates fixed by the trial court immediately after the framing of issues. The trial court is requested to frame the issues in the suit as expeditiously as possible, positively within three weeks from the date of communication of this order to the court below and to fix dates for the examination and cross‐ examination of the proposed witness Hiranmoy Nag at the earliest thereafter and ensure that such entire evidence of the witness is completed within a month from framing of issues.
29. There will be no order as to costs.
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30. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )