Interim Order 2

Order Details: Order below exhibit
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IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
ORDER BELOW EXH.29
IN
COMMERCIAL SUIT NO.249 OF 2019
Jitendra Meghji Chhadva ]
Karta of Jitendra Meghji Chhadva, HUF ]...Plaintiff
V/s
Bharat S.Udeshi
Proprietor of M/s.Shiv Sneha Associates ]...Defendant
Appearances:
Ld. Adv. Chaitanyaa Bhandarkar for the plaintiff.
Ld. Adv. Ram B. Laxmipalli for defendant Nos.1 and 2.
CORAM : HIS HONOUR ADHOCADDL.SESSIONS
JUDGE SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 7th October, 2021
ORDER
By this application, the plaintiff has requested to issue
witness summons on the defendant under Order XVI, Rule 7 and 14 of
the Code of Civil Procedure, 1908, (in short “the CPC”) to examine him
as a witness of the plaintiff.
2. It is the contention of the plaintiff that the plaintiff has
produced certified copy of writing dated 05.01.2018, issued by the
defendant and certified copy of dishonored cheques, bearing No.01841
and 081143 issued by the defendant. These documents are not marked
as exhibits in the evidence. The defendant is a Author of these
documents and hence the plaintiff wants to examine the defendant to
prove these documents.
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3. The application is opposed by the defendant by filing reply at
Exh.13. It is the contention of the defendant that Order XVI, Rule 7 of the
CPC speaks about power of the Court to require the person present in the
Court to give evidence or produce documents. The defendant does not
possess the documents intended to be proved by the plaintiff. The
defendant has already denied signature and contents of these documents.
There is no valid reason to exercise the power under Order XVI, Rule 7 of
the CPC. The provision contemplates to examine any person present in the
court which does not include party to the suit.
4. It is further contention of the defendant that, Order XVI, Rule
14 of the CPC speaks about the power of Court on own occurred summon
the witness, stranger to the suit. Therefore, such powers can be used by the
Court on by its own motion. There is no valid legal reason to allow the
application. If the application is allowed, the defendant will be required to
recall the plaintiff's witness on the basis of evidence now sought to be
brought on record. With these contentions, the defendant has prayed to
reject the application.
5. Heard the learned Advocates for the plaintiff and for the
defendant. Read the application and say filed.
6. The plaintiff wants to examine the defendant to prove the
writing dated 05.01.2018, issued by the defendant and in respect of
certified copies of dishonored cheques, alleged to have been issued by the
defendant. First, it is required to verify, whether such application is
maintainable? and Whether the plaintiff can examine the defendant as his
witness?
7. The Hon'ble Karnataka High Court in M.C.Ananda and Anr.
Vs. M.C. Chikkanna and Anr. (AIR 2001 Kant139) held as follows:
“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 produce documents and the Court below appears to
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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
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 recall him, to produce the documents.”
8. Similarly, the Hon'ble Delhi High Court in Atul Kumar Singh
Vs. Nitish Kumar & Others by its judgment dated 13.11.2019 in CS
(Comm) 258/2018, CC.25/2011, I.As. 3333/2018, 4210/2018,
4827/2018 and 16560/2018 held that, the party can examine the opposite
party as his witness. Therefore, the present application is maintainable.
9. In the aforesaid judgment, the Hon'ble Delhi High Court in
paragraph No.30 laid down some of the factors need to be considered while
deciding such an application. They are as follows:
“30. (1) Order XVI of the code, which deals with the summoning of the
witness does not bar one party from applying for the examination of the
other as his witness.
(2) It is not that everyone who is included in the list of witnesses is
automatically summoned.
(3) The Rule is if the grounds are made out for summoning of witness, he
will be called not if the demand is belated, vexatious or frivolous.
(4) An application for summoning of the witness should not be granted as a
matter of course, but at the appropriate stage, the court can pass such order
keeping the facts of the case and conduct of the contesting party in mind.
(5) In an application for summoning of witness cogent reasons needs to be
mentioned. In the absence of any cogent reason, the application is liable to
be dismissed.
(6) Motives of the party should be looked into by the court while deciding
the application for summoning of witness under Order XVI Rule 1 CPC.
(7) Strong evidence needs to be adduced by the party opposing an
application for summoning of witness to show that it is not a bona fide and
the granting of such application shall be permitting an abuse of the process
of the court.
(8) The summoning or examination of an opposite party of a suit must be
allowed by the court only in the rarest of rare cases when it is unavoidable
in the interest of justice.”
10. Therefore, there must be cogent reason to issue such witness
summons. As aforesaid the plaintiff wants to examine the defendant to
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prove the alleged writing dated 05.01.2018 and cheques alleged to have
been issued by the defendant. Both these documents tendered on record are
at ArtX2 and X3. Both are not the original documents but they are part of
certified copies issued by the Learned Metropolitan Magistrate Court. Had
there been the original documents on record, the efforts to examine the
concern party will be effective. Necessarily, if there are certified copies, the
originals of the same are available. In absence thereof they cannot be
considered as primary evidence and examination of the defendant thereon
will be fruitial exercise.
11. The defendant has already denied both these documents.
Necessarily, in the deposition he will not support the plaintiff's case. As
chance of denial of documents can be assumed before exercising the
jurisdiction to issue witness summons to the defendant. If the defendant is
opposing the document and there are chances of he is not supporting the
plaintiff's case, again issuance of witness summons to the defendant will be
fruitial exercise.
12. It is not the case that the plaintiff could not prove the cheques
by examining the bank witness. Examination of defendant alone is not the
option. Hence, there is no necessity to examine the defendant as his
witness. For the aforesaid reasons, there is no sufficient ground to allow the
application. In the result, I pass the following order.
ORDER
1. Application (Exh.29) is rejected.
2. Costs shall follow the event.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 07.10.2021 Mumbai.
Dictated on :07.10.2021
Transcribed on :08.10.2021
Signed by HHJ on :11.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.10.2021 at 4.21 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
07.10.2021
Judgment/order signed by P.O. on 11.10.2021
Judgment/order uploaded on 13.10.2021
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