Karnataka High Court
M.C. Ananda And Another vs M.C. Chikkanna And Another on 8 January, 2001
Equivalent citations: AIR2001KANT139, 2001(4)KARLJ203, AIR 2001 KARNATAKA 139, 2001 AIR - KANT. H. C. R. 573, 2001 A I H C 1337, (2002) 3 RECCIVR 162, (2001) 4 KANT LJ 203, (2002) 3 CIVILCOURTC 100
JUDGMENT
1. This civil revision petition arises from the order dated 9-3-1998 passed by the IV Additional Civil Judge (Junior Division), Mysore, in O.S. No. 82 of 1995 on LA. No. 6 rejecting the same moved by the plaintiffs (revision petitioners herein) under Order 16, Rule 1 of the Civil Procedure Code seeking permission of the Court to examine defendant 3 as witness on behalf of the plaintiffs in the said case.
2. The Court below rejected the said application on the ground that the witness mentioned in I.A. No. 6 is none else that defendant 3 in the suit and the plaintiffs have no right to examine defendant 3 as their witness.
3. Sri M.V. Hiremath, learned Counsel for the revision petitioners contended that Order 16, Rule 1 of the Civil Procedure Code, contemplates 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 there is no bar to examine the defendant/opponent by a party as his witness. The learned Counsel contended that it is always open to the plaintiff to examine any person as independent witness/witnesses or to examine any one of the defendants/opponents in the circumstances prevailing. As such, according to the learned Counsel for the revision petitioners, the Trial Court illegally refused to summon defendant 3 as their witness. The learned Counsel further contended that defendant 3 has not filed any written statement and hence there could not be any conflict of interest between the plaintiffs and defendants. Therefore, there could not be any bar to the plaintiffs examining defendant 3 (respondent 3 herein) as their witness. The learned Counsel contended that the Trial Court has arbitrarily and illegally refused to summon defendant 3 in the suit as plaintiffs' witness. In support of his contentions, the learned Counsel for the revision petitioners placed reliance on the Single Judge decision of this Court in Syed Yasin v Syed Shaha Mohd. Hussain, and contended that it is open to the one party to the suit to summon and examine the other party to the suit as their witness or summon him to produce the documents and the Code does not prohibit from examining the other party as witness. The learned Counsel contended as such the order of the Court below be set aside and the applications of the plaintiffs-revision petitioners be allowed in exercise of the jurisdiction under Section 115 of the Civil Procedure Code.
4. Though the respondents have been served with notice, appearance has been put only on behalf of respondent 1, and while others have remained unrepresented.
5. On behalf of the first respondent appearance has been put by Sri G.P. Suresh. The learned Counsel contended that the order of the Court below does not suffer from any error of law or jurisdiction. He further contended that the plaintiffs-revision petitioners have no right to summon the defendant as witness. He urged that the revision petitioners had no right to examine defendant 3 as their witness. Even if, defendant 3 has not filed any written statement, it is always open to him to contest the case by filing the written statement. He submitted that defendant 3 could file the written statement at any time. The learned Counsel for the first respondent made reference to the decision of the Privy Council in case of Mahant Shatrugan Das v Bawa Sham Das and to the decision of this Court in Mallangowda and Others v Gavisiddangowda and Another. The learned Counsel relying on these decisions and contended that the practice of summoning by a party his opponent as witness in the case has been deprecated and condemned. As such the Trial Court has been justified and did not commit any jurisdictional error in refusing to summon defendant 3 as plaintiffs-revision petitioners' witness. The learned Counsel for the first respondent has also placed reliance on the other decision of this Court in Principal, Basavaprabhu Kore College of Arts and Science v Virupaxappa Channabasappa . The learned Counsel further submitted that if the Court below for the time being be taken to have erred in rejecting the application and erred in not summoning defendant 3 as plaintiffs-revision petitioners' witness, the error if any at all which the respondents do not admit. It cannot be said to be a jurisdictional error within the framework of Section 115 of the Civil Procedure Code. The revision petition is not maintainable as the jurisdiction of this Court is confined to jurisdictional error within the framework of clause (a), (b), or (c) of Section 115 of the Civil Procedure Code. Therefore, the civil revision petition should be dismissed.
6. I have applied my mind to the contentions advanced by the learned Counsels appearing for the parties.
7. The jurisdiction of this Court under Section 115 of the Civil Procedure Code beyond doubt is confined to jurisdictional error coming within the framework of either of clause (a), (b) or (c) of Section 115 of the Civil Procedure Code. If there is no jurisdictional error, and even if there be an error of law and fact simpliciter, then that error will not authorise this Court to interfere with the order. No doubt, Order 16, Rule 1 read with Order 16, Rule 21 of the Civil Procedure Code as amended by Karnataka High Court, may be said to entitle a party to a suit to require any other party thereto to give evidence or to produce a document. Order 21, Rule 16 of the Civil Procedure Code as amended by the Karnataka High Court reads as under:
For Rule 21 substitute the following:
"21 (1) When a party to a suit, is required by any other party thereto to give evidence, or to produce a document, the provisions as to witness shall apply to him so far as applicable.
(2) When a party to a suit gives evidence on his own behalf, the Court may in its discretion permit him to include as costs in the suit of money equal to the amount payable for travelling and other expenses to other witness in the case of similar standing".
8. So, no doubt, this rule indicates that a party to the suit may be required and a party may be entitled to require any other party to the suit to give evidence, or to produce the documents and the Court below appears to have proceeded on mistaken notion that a party to the suit is not entitled subject to the power and permission of the Court to summon or to examine the opposite party. The expression 'any other party thereto' is indicative of the party to the suit or to say party other than summoning the party which may include the opposite party. In other words, the plaintiff may summon the defendant as a witness and require him, to produce the documents. Similarly, the defendant may summon the plaintiff, as held by this Court in Syed Yasin's case, supra, but it is open to the Court, if in its opinion, summoning of the other party or opponent is likely to result in the abuse of the process of the Court, it may refuse as well. It is also no doubt true that ordinarily the practice of calling the opposite party has been held and considered to be unhealthy practice, as held by their Lordships of the Privy Council in Mahant Shatrugan Das, case, supra and by the Division Bench of this Court in Mallangowda's case, supra. The Division Bench in paragraph 7 of the said report observed as under:
"We have in unmistakable terms stated in this Court previously that this practice of calling the opposite party as a witness on his side should not be countenanced as it is not in the interests of justice".
9. The discretionary power to summon has to be exercised in a judicial manner. When this practice has been condemned as abortive and the Privy Council in the case of Khushal Singh v Secretary of State for India in Council , has held it as objectionable and their Lordships laid it down that it ought never to be permitted as it is not in the interest of justice. It is open to Court to refuse to permit the summoning by a party of his opponent, as his own witness in support of his own case.
10. In the present case, the Court below has rejected the application simply taking erroneous view that the plaintiffs are not entitled to summon defendant 3 as witness, and illegally refused to exercise the jurisdiction. It could have rejected the application on any ground or ground to the effect that such practice has been condemned as not in keeping pace with the principles laid down by the Privy Council and the Division Bench. The Trial Court has not applied its mind to all this aspect. In this view of the matter, it appears just and proper to allow the revision petition and to set aside the order of the Trial Court dated 9-3-1998 and to direct the Court below to consider the application afresh according to the decisions and the facts and circumstances of the case and to pass suitable orders keeping in view the principles of law laid down by the Privy Council and the decisions of this Court in this regard as well.
11. The civil revision petition, as such is hereby allowed and the order dated 9-3-1998 impugned in this revision is hereby set aside.
12. The Court below is directed to consider the application (LA. No. 6) of the plaintiff-revision petitioners afresh in accordance with law and the principles of law laid down with respect to an exercise of its jurisdiction in the context of the plaintiffs summoning as the witness the defendant 3 keeping in view the facts and circumstances of the case.
13. The costs of this revision to be borne by the respective parties.