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Mahalaxmi Co. Ltd. Vs. Ganeshdas Tarachand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 476 of 1973
Judge
Reported in1976WLN(UC)480
AppellantMahalaxmi Co. Ltd.
RespondentGaneshdas Tarachand
DispositionPetition allowed
Cases ReferredIn Sangram Singh v. Election Tribunal Kotah and Anr.
Excerpt:
.....be made a party in addition to plaintiff mills.;i deem it proper to substitute the national textile corporation in addition to the mahalakshmi mills co. ltd., as a co-applicant. this shall be without prejudice to the rights of the defendant to content the right of the national textile corporation to be impleaded as a plaintiff. that is an issue to be tried in the suits.;(b) civil procedure code--order 16 rule 1--list of witnesses not filed within time--trial court refusing to record evidence of witnesses present--held, it caused failure of justice.;the learned trial judge also failed to appreciate that when the witnesses mentioned in the list, were present in court it was his bounden duty to hive examined them. the failure to permit the witnesses being examined will, to say the..........government. the act provides by section 3 for the vesting of the plaintiff mills in the national textile corporation. the plaintiff mills accordingly filed an application under order 22 rule 10 of the code for substitution of the national textile corporation as the applicant. the application for substitution was opposed by the respondent. it was urged that the present suit does not fall within the class of suits described in section 4(6) and, therefore, the proceeding in revision cannot be continued by the national textile corporation. an against this, the contention of the national textile corporation is that under section 4(1), the effect of the vesting of the sick textile undertakings, is that all rights vest in the national textile corporation. it is urged that the section is wide.....
Judgment:

A.P. Sen, J.

1. This is a plaintiff's revision against an order passed by the trial court under Order 16 Rule 1(ii) of the Code of Civil Procedure, refusing to record the evidence of the plaintiff.

2. The Mahalakshmi Mills Co. Ltd. (Beawar a Government of India Controlled Undertaking) through the Authorised Controller, filed a suit fur recovery of Rs. 2,700/- as damages for breach of contract, as also on account of godown charges against the defendant, for his failure to take delivery of certain cloth bales. The Mills was declared to be a sick undertaking on 9.1.1967 under the Industries (Development and Regulation) Act, 1951. The contracts in question for the supply of cloth bales were entered into by the Authorised Controller on 18.7.1968, 8.11.19668 and 26.11.1960. The plaintiff's case is that the defendant committed a breach by failing to lift some of the bales and, therefore, it was compelled to resell the bales, as a result of which it suffered a loss on account of resale & it also claimed godown charges. The Issues were struck on 9.7.1973. A list of witnesses was not filed by the plaintiff filed 22.9.1973 i.e. beyond the period of 30 days specified in Order 16 Rule 1(i) of the Code, as amended by the Rajasthan High Court. On 8.10.1973 i.e., the date fixed for the evidence, the plaintiff's 3 witnesses mentioned in the list, tamely, Ramvilas, Sohanlal and Rameshchandra were present and the plaintiff wanted to tender their evidence. The trial court, however, refused to record their evidence on the ground that the list was not filed within the period of 30 days specified under Order 16 Rule 1(i), besides the plaintiff has not filed an application seeking its permission to produce witnesses nor had shown any cause for not filing the list in time, Hence the revision.

3. During the pendency of the revision, the plaintiff-Mills was nationalized by the Government of India under the Sick Textiles Undertaking (Nationalisation) Act, 1974 and it was taken over by the Central Government. The Act provides by Section 3 for the vesting of the plaintiff Mills in the National Textile Corporation. The plaintiff Mills accordingly filed an application under Order 22 Rule 10 of the Code for substitution of the National Textile Corporation as the applicant. The application for substitution was opposed by the respondent. It was urged that the present suit does not fall within the class of suits described in Section 4(6) and, therefore, the proceeding in revision cannot be continued by the National Textile Corporation. AN against this, the contention of the National Textile Corporation is that under Section 4(1), the effect of the vesting of the sick textile undertakings, is that all rights vest in the National Textile Corporation. It is urged that the section is wide enough to include the right to centime the proceedings ID revision. It is urged that Section 4(6) only relates to any suit, appeal or otter proceeding in relation to any matters specified in Sub-section (2) of Section 5. It is pointed out that Section 5 of the Act only relates to certain liabilities which are taken over by the National Textile Corporation. The submission is that Sub-section (6) of Section 4 only relates to continuance of proceedings for the enforcement of liabilities, and does not relate to any suit, appeal or other proceeding for enforcement of any rights. My attention is also drawn to the provisions of Section 4(1) of the Act under which the National Textile Corporation, to the exclusion of the sick textile undertakings is entitled to make realisations pertaining to the date prior to the appointed date.

4. Having given my anxious consideration to the rival contentions, I deem it proper to substitute the National Textile Corporation in addition to the Mahalakshmi Mills Co. Ltd. as a co applicant. This shall be without prejudice to the rights of the defendant to contest the right of the National Textile Corporation to be impleaded as a plaintiff. That is an issue to be tried in the suit.

5. A short question is whether the refusal of the trial court to permit the plaintiff to examine its witnesses under Order 16 Rule 1(ii) of the Code was tantamount to failure to exercise its jurisdiction.

6. The learned trial Judge was quite oblivious of the fact that the issues were struck en 9-7-1973 and from 9-7-1973 to 14-8-1973 there was a general strike of Government servants, including the members of the staff. There could, therefore, be no strict adherence of Order 16 Rule 1(i) as amended in Rajasthan during that period. He also failed to appreciate that the plaintiff Mills is a sick textile undertaking and the Government of India had appointed an Authorised Controller to manage its affairs. It is a matter of common knowledge that the Authorised Controller has several Mills in his charge. It is a, therefore, literally impossible for him to have complied with the requirements of Order 16 Rule 1(1) of the Code within the time specified therein. The learned trial Judge also failed to appreciate that when the witnesses mentioned in the list, were present in court it was his bounden duty to have examined them. The failure to permit witnesses being examined will, to say the least, be a denial of justice.

7. Order 16 Rule 1(ii) itself provides the exception where the strict requirements of the rule can be dispensed with i.e., on good cause shown. The learned trial Judge has in a laconic sentence merely stated that no reasons have been shown. The reasons, in my view, speak for themselves No doubt the granting or refusal of the permission asked by a party to produce witnesses not mentioned in the list, is no doubt a mater within the discretion of the learned trial Judge trying the suit, but that discretion is a judicial discretion of not an arbitrary one. In Mst. Tulsi Bai v. Chunilal 1964 RLW 263, it was held that the rule put the parties themselves on a different footing from their witnesses so that it would be open to the parties to examine themselves in evidence on a notwithstanding the fact that their names may or may not be mentioned in the list. That principle was clearly applicable to the facts and circumstances of the present case. The plaintiff Mills in an impersonal being, besides being a sick textile undertaking. The plaintiff Mills depended on its agents and servants to manage is affairs. The plaintiff was, therefore, entitled to examine the witnesses under Order 16 Rule 1A of the Code. That being so, the failure to examine the witnesses has resulted in a manifest failure of justice.

8. Procedure is mere machinery and its object is to facilitate and that to obstruct the administration of justice. The Code should, therefore, be construed liberally and so far as possible technical objections should not be allowed to defeat substantial justice. In Sangram Singh v. Election Tribunal Kotah and Anr. AIR 1935 SC 425 Vivian Bose, J observed:

Now a code of procedure must be regarded as such. It is procedure, some thing designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.

The powers under Order 16 Rule 1(ii), as amended by the Rajasthan High Court, are intended to be exercised with a view to subserve and not to defeat the ends of justice.

9. In the result, the revision succeeds and is allowed. The order passed by the learned trial Judge is set aside and he is directed to examine the witnesses of the plaintiff as per the list. There shall be no order as to costs.


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