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Murari Lal Vs. Nem Chand JaIn Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 19 of 1974
Judge
Reported in1974RLR466
ActsCode of Civil Procedure (CPC), 1908 - Sections 30
AppellantMurari Lal
RespondentNem Chand JaIn Etc.
Advocates: R.B. Gupta and; G.L. Rawal, JJ
Cases ReferredIn Dass Ram vs. Charanjit Lal and
Excerpt:
the court adjudged that either party to a suit was entitled to the assistance of the court by issue of a process in accordance with the rules and practice of the court for presence of his witness for giving oral testimony at any stage of the suit what so ever it had been instituted under section 30 order rule 1 of the civil procedure code, 1908 - - the learned subordinate judge was clearly in error when she states that she could only refer to affidavits and no other material brought on the record by the witnesses. should the plaintiff fail to produce any relevant documents or the originals of the copies filed, on being required by the defendant by a notice to produce, the plaintiff runs the risk of an adverse presumption being drawn against him and the court not finding itself satisfied..........rightly) refused the rather unusual and illegal request of the defendant to order the opposite party plaintiffs) to summon the records of the custodian. but the subordinate judge did not have any objection and indeed recognised the right of the defendant to summon the said records himself to discredit the plaintiffs in making out his prima facie case. the observations of the learned subordinate judge in the impugned order that the application of the defendant for summoning the record himself had been rejected, is not correct from the record. again, the reasons given by the learned subordinate judge for rejecting the application of the defendant to summon the record from the custodian are legally not tenable. it is true that under order 39, rule 1 of the code of civil procedure, the.....
Judgment:

B.C. Misra, J.

(1) Suit premises was an evacuee property It was allotted to one Sham Babu. After his death, the plaintiffs claimed that they were in possession as partners and that this was re1 cognised by Custodian and that they had been illegally dispossesed by defendant. Defendant denied this and claimed that he was in lawful possession. Plaintiffs sought interim injunction and filed a carbon copy of a receipt from the department. Defendant claimed the receipt to be forged one and applied that plaintiffs should produce original receipt and also summon record from Custodian's office. Plaintiffs replied that they had lost the original and about summoning record, it was held that plaintiffs could not be compelled and defendant could himself do the same. The Sub-judge got transferred and defendant moved his successor for summoning record. This application was declined and defendant moved High Court. Para 6 onward, order is : -

(2) The later order of the Subordinate Judge dt. 26-7-73 has been impugned in this revision and the learned counsel for the petitioner has submitted that the learned Subordinate Judge had misread the directions given by her predecessor and that her order suffers from a material irregularity in exercise of her jurisdiction and that the defendant has illegally been deprived of his right to summon and produce the relevant evidence.

(3) I have heard the learned counsel for the parties at some length and find that there is force in the revision. The subordinate Judge by the previous order dated 16th November 1972 directed the plaintiffs to produce the original receipts and refused the application of the defendant for giving directions to the plaintiffs to summon the record from the Custodian to substantiate their receipt, but so far as summoning of the record from the Custodian is concerned, the Subordinate Judge observed that the defendant could discredit the plaintiffs'material from such record. By this order, he only (and in my view rightly) refused the rather unusual and illegal request of the defendant to order the opposite party plaintiffs) to summon the records of the Custodian. But the Subordinate Judge did not have any objection and indeed recognised the right of the defendant to summon the said records himself to discredit the plaintiffs in making out his prima facie case. The observations of the learned Subordinate Judge in the impugned order that the application of the defendant for summoning the record himself had been rejected, is not correct from the record. Again, the reasons given by the learned Subordinate Judge for rejecting the application of the defendant to summon the record from the Custodian are legally not tenable. It is true that under Order 39, Rule 1 of the Code of Civil Procedure, the Court has been given the power to issue ad interim injunctions on certain facts being proved by affidavit or otherwise. Normally the parties seeking or opposing the grant of interim relief would attempt to satisfy the Court only by affidavits. The provision is, however, permissible. This would include other material placed before the Court, including any evidence brought on the record. The learned Subordinate Judge was clearly in error when she states that she could only refer to affidavits and no other material brought on the record by the witnesses.

(4) In a case where the plaintiff wants to obtain an interim relief on the basis of his affidavit (or the documents accompanying the affidavit), it is not open to the defendant, opposite party, to require the plaintiff to summon any oral or documentary evidence to substantiate his case and not be content by the affidavit on which the plaintiff wants to rely. The choice is of the plaintiff. Should the plaintiff fail to produce any relevant documents or the originals of the copies filed, on being required by the defendant by a notice to produce, the plaintiff runs the risk of an adverse presumption being drawn against him and the Court not finding itself satisfied with regard to the correctness of his version even on a prima facie view of the matter. Although the opposite party cannot be compelled 10 summon the evidence, this does not debar the defendant himself to summon and produce at his own expense any evidence he likes, to satisfy the Court that the interim relief which the plaintiff seeks ought not be granted and that the circumstances required by the statutory provisions have in fact not been satisfied. Section 30 of the Code of Civil Procedure gives the power to the Court at any time (either of its own motion or on an application by a party) to make orders specified there in, including an order for production of documents, evidence and witnesses. This power is exercisable subject to the conditions and limitations which may be prescribed. Order 16 of the Code prescribes the limitations in the matter of obtaining summonses and for attendance of witnesses. Rule 1 of Order 16 lays down 'At any time after the suit is instituted, the parties may obtain, on application to the Court * * * the summonses to persons whose attendance is required either to give evidence or to produce documents.' Subject to other provisions of the Order and the Code, it is the right of a parly to obtain the assistance of the Court by issuance of summonses to his witnesses at any time after the suit has been instituted. In Dass Ram vs. Charanjit Lal and another, 1974 R C R 57, R.S. Narula, J. held that it was the right of a party to a civil suit under Order 16 Rule 1 of the Code of Civil Procedure to obtain summonses to the persons whose attendance was required either to give evidence or to produce documents on making an application to the Court for that purpose any time after the suit was instituted and the Court had no discretion in the matter. He further held that refusal to allow summonses amounted to refusal to exercise jurisdiction vested by law and his lordship interfered with the order in revision.

(5) The exercise of this power and for that matter of the power under section 30, is not confined to issue of summonses only after the framing of the issues & for the purpose of producing oral evidence, at what is known as hearing of the suit provided by order 18 of the Code. The party has a right to obtain production of any document for the perusal of the Court at any stage of the suit after the institution of the suit. Even before the filing of the written Statement or framing of the issues, the party is entitled to obtain summonses for the evidence of the witnesses. The question whether the Court will record the evidence of the witnesses at that stage or not is another matter which would have to be decided by the Court when it is raised ; similarly the relevance of the testimony of the witnesses and the admissibility and relevance of the documents would also be determined by the Court at the time they are produced and tendered. This power is exercised by the Court according to law but that does not militate against the right of the party to obtain the assistance of the Court to summon the necessary witnesses and documents at any stage irrespective of whether or not they would, on production, be found to be relevant and admissible. This is of course subject to other provisions of law. My conclusion is that under the Code, either party to a suit is entitled to the assistance of the Court by issuance of the process, in accordance with the rules and practice of the Court for the presence of his witnesses for giving oral testimony or producing documents at any stage of the suit whatsoever after it has been instituted. The Court is legally bound to grant the application of the party for such purpose. The only exception on the exercise of the right of the party is that it should not be prohibited by law ; for example, Order 16, Rule 19 and section 133 of the Code. I may also add that should the Court in any given case find that the issue of the process sought is an abuse of the process of the Court or has been made to perpetuate a fraud, the Court retains an in herent jurisdiction to refuse the request, but subject to such well-established limitations, the Court cannot refuse the application of the party for issuing summonses for his witness or production of material evidence. The stage for exercise of judicial discretion to decline or record evidence or to determine its relevancy or admissibility arises later.


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