Skip to content


Sohan Singh and Co. Vs. Mohammad Aishak Tyagi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 5 of 1971
Judge
Reported inAIR1973HP39
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 16, Rules 10 to 16 and 20
AppellantSohan Singh and Co.
RespondentMohammad Aishak Tyagi
Appellant Advocate R.N. Malhotra, Adv.
Respondent Advocate Inder Singh, Adv.
DispositionRevision allowed
Cases ReferredD. L. F. Housing and Construction Co. (P.) Ltd v. Sarup Singh
Excerpt:
- .....suit in civil court. on these two legal pleas which were preliminary in nature, the learned senior subordinate judge framed two specific issues: one on the locus standi of the plaintiff and another on the jurisdiction of the court. under order 14. rule 2, civil p. c.. it was open to the learned senior subordinate judge to decide these issues at first, because they materially affected the rights between the parties. accordingly he called upon the defendant to produce evidence in support of these two preliminary issues and the defendant wanted to examine the accountant of the p. w. d. who was asked to bring the original contract and also the labour inspector before whom the application was pending. the labour inspector was also asked to bring the particular application submitted by.....
Judgment:
ORDER

D.B. Lal, J.

1. Mohammad Aishak Tyagi has filed a suit in the Court of the Senior Subordinate Judge, Bilaspur, for recovery of Rs. 13,390/- against M/s. Sohan Singh & Co. Government Contractors, and the allegation is. that the plaintiff is entitled to that amount on account of labour charges because the defendant engaged him to procure labour in connection with his contract for the construction of Court buildings at Bilaspur. The defendant put forward preliminary objections that the plaintiff had no locus standi to file the suit because the defendant was liable to pay the labour charges direct to the labourers and the plaintiff had nothing to do with such payment and that the plaintiff himself had filed an application before the Labour Inspector and the proceedings being pending there, could not be agitated by filing a regular suit in Civil Court. On these two legal pleas which were preliminary in nature, the learned Senior Subordinate Judge framed two specific issues: one on the locus standi of the plaintiff and another on the jurisdiction of the Court. Under Order 14. Rule 2, Civil P. C.. it was open to the learned Senior Subordinate Judge to decide these issues at first, because they materially affected the rights between the parties. Accordingly he called upon the defendant to produce evidence in support of these two preliminary issues and the defendant wanted to examine the Accountant of the P. W. D. who was asked to bring the original contract and also the Labour Inspector before whom the application was pending. The Labour Inspector was also asked to bring the particular application submitted by the plaintiff. These two witnesses were duly served, which is clear from the order of the learned Senior Subordinate Judge. On 23rd October, 1970 which was fixed for the recording of evidence upon the two preliminary issues, the counsel for the parties were present, but the defendant himself was absent and he moved an application for adjournment because his witnesses despite service were not available. The defendant also produced a medical certificate and the learned counsel on his behalf pressed for ad-! journment on these grounds.

2. The learned Senior Subordinate Judge instead of adjourning the case or assisting the defendant in procuring the attendance of witnesses, made an order, signifying that the witnesses, were not present and that the defendant himself was absent. He further observed that the defendant did not appear interested in producing evidence on the preliminary issues, that he was already given 'numerous opportunities', and that the case was much delayed. As such 'justice and equity' demanded that the evidence of the defendant should be closed on the preliminary issues, and further observed that the burden of proof lay upon the defendant which he failed to discharge and so the two preliminary issues as well as two other issues which correlated to such legal objections, all the four issues, were decided against the defendant. In other words, it was held that the Court had jurisdiction to try the suit and that the plaintiff had locus standi to institute the suit. This order was made on 23rd October, 1970. The defendant has felt aggrieved of the order and has come up in revision.

3. It is abundantly clear that the witnesses summoned by the defendant were necessary witnesses. They were required to produce documents and unless such documents were before the Court, the statement of the defendant could not be recorded. If the defendant had taken all necessary steps for the summoning of these two witnesses and they were also duly served as observed by the learned Senior Subordinate Judge, where was a default committed by the defendant. He had done whatever law enjoined him to do and, in fact, a duty lay upon the Court to assist him in procuring the attendance of his witnesses. The Court should have proceeded under Order 16, Rules 10 to 16. The witnesses who were already served could be proceeded against and their attendance enforced so that the evidence could be recorded. Insteadof doing that, the learned Senior Subordinate Judge closed the evidence of the defendant on the four preliminary Issues and thereby decided a Dart of the case against him. It was not within the power of the defendant to have procured the attendance of witnesses who were Government Officers. In the circumstances, it was incumbent upon the Court to have adjourned the case and to have assisted the defendant under Order 16 to procure attendance of witnesses. This the Court has not done and it has obviously failed to exercise a jurisdiction vested in it under law,

4. It was contended by the learned counsel that no application was moved by the defendant to procure assistance of the Court under Order 16. But such an application was not required to be given. When summonses were duly issued by the Court and properly served upon the witnesses, the Court itself could initiate attendance of witnesses under Order 16 when obviously the defendant could not proceed with his own statement unless the necessary documents were available in Court Under Order 16, Rule 20. the Court could pronounce judgment only if the party to the suit refused without lawful excuse when required by the Court, to give evidence or to produce any document then and there in his possession or power. Such was never the situation here, and, therefore, judgment could not be pronounced under Rule 20. Similarly under Order 17. Rule 3. as well, the Court could not decide the four issues on merit because it could not be stated that the defendant had failed to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time was allowed by the Court Therefore, any decision on merit arrived at for the four preliminary issues was unjustifiable and was the result of a wrong exercise of jurisdiction.

5. In Vinod Ramkisan v. Peer-chand Bholaram, (AIR 1954 Madh Bha 155), the Court found that the witnesses who were served were not present, instead of taking coercive steps to secure their attendance as it ought to have the Court closed the evidence of a party, it was held that the Court had acted with material irregularity in exercise of its jurisdiction and the order of the Court was set aside. A somewhat similar situation has arisen in the instant case.

6. In Bachan Singh v. Smt. Sarli, (1965-67 Pun LR (SN) 118). it was found that a party was not guilty of any deliberate default of summoning witnesses, it was held that there was hardly any justification for the trial court to refusethe assistance of the Court to such party to secure the attendance of his witnesses. Thus, it is evident, that the Court has failed to exercise a jurisdiction vested in it and as such interference has to be made and its order is required to be set aside.

7. It was then urged by the learned counsel that on previous dates too. adjournments were being solicited by the defendant. But that part of the argument is not sustainable. If adjournments were sought for by the defendant, the same were considered based on justifiable grounds and hence the Court granted such adjournments. The defendant could not be penalised for any such adjournments.

8. It is evident that a part of the case has been decided against the defendant. Tine expression 'case' used in Section 115 is a word of 'comprehensive import' and is not restricted to the entirety of the proceeding in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding would be to impose a restriction upon the exercise of power of superintendence, which is inherent in the phraseology of Section 115. (See S. S. Khanna v. F J. Dillon. AIR 1964 SC 497). The interlocutory character of the order, similarly, would not stand in the way of deriving the conclusion that the decision was a case decided for the purpose of Section 115. In 66 Pun LR 115 = (AIR 1964 SC 497) their Lordships of the Supreme Court were considering an interlocutory order, holding that the suit filed by the plaintiff was not maintainable. It was observed that the decision had a direct bearing on the rights of the plaintiff to a decree and must be regarded as a case which has been decided. The instant case is of a converse nature. Here the learned Senior Subordinate Judge has decided that the suit is maintainable and that the plain-tiff has a locus standi. and that the Court has jurisdiction to try the suit. This is a decision which has a direct bearing on the right of the defendant who contests the claim of the plaintiff and also on the right of the plaintiff who may get a decree against the defendant. As such the decision is a case decided for the purpose of Section 115. As pointed out in D. L. F. Housing and Construction Co. (P.) Ltd v. Sarup Singh, (1971) 73 Pun LR (D) 92 = (AIR 1971 SC 2324), a material defect of procedure necessarily refers to the exercise of jurisdiction by the Court. In the instant case, a material defect in procedure is detected, because the provisions of Order 16 were not invoked by the Court and a decision on merit was given against the defendant, practically without any evidence. It was adecision which should be interfered with under the revisional powers of the High Court.

9. I have, therefore, no hesitation in holding that the order of the learned Senior Subordinate Judge was without jurisdiction and. in fact, he has failed to exercise a jurisdiction vested in him. It may even be stated that he has acted in the exercise of his jurisdiction illegally and also with material irregularity.

10. The petition Is. therefore, allowed and the order of the learned Senior Subordinate Judge is set aside. He shall give an opportunity to the defendant to secure the attendance of his witnesses on a date to be fixed by him.

11. In the special circumstances of the case, no order is made as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //