Ashok Sharma vs Ram Adhar Sharma

Ashok Sharma ..Appellant

VERSUS

Ram Adhar Sharma ...

Respondent

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. In the year 1995, the respondent Shri Ram Adhar

Sharma let out his flat bearing No.11-C, Una Enclave,

Mayur Vihar, Phase-I, Delhi-110091 (hereinafter referred

to as the `suit premises') to the appellant at a rental of

Rs.3000/- per month, inclusive of electricity bill and

maintenance charges of the UNA Cooperative Society (in

short `the Society').

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3. Now a suit has been filed by the respondent in the Court

of the District Judge, Delhi for a decree for possession

and also for a decree of Rs.1,01,880/- with interest

accrued thereon and for other reliefs.

4. On or about 27th of November, 2004, issues were framed

by the trial Court and both the parties were directed to

file list of witnesses/documents within 15 days from the

aforesaid date. The parties went to trial and the

respondent brought Sh.Pawan Kumar Vasudeva, the

President of the UNA Cooperative Group Housing

Society, within which the suit premises is located, who

deposed as PW-3 and made the following statement in

his examination :-

"I am the President of UNA Cooperative Group Housing Society. I have seen the document already exhibit as Ex.PW/1/3. I identify my signature on this document. I have produced the documents, the construction of society."

5. After closure of examination and cross-examination,

the trial court closed his examination, but the witness

2 Pawan Kumar Vasudeva-PW-3 sought permission of the

court to file certain documents which was not allowed by

the trial court on the ground that a witness could not be

allowed to produce documents under Order XVI Rule 1 of

the Code of Civil Procedure (in short `the Code') as the term

"production", as mentioned in Order XVI Rule 1 of the Code

shall mean that the witness can be summoned to bring the

record to prove the documents placed on record by the

parties to the suit and since the document in question was

not produced by the respondent either along with the plaint

or at the time of framing of issues, such document at that

stage could not be taken on record.

6. Feeling aggrieved by the aforesaid refusal to accept the

document, as noted hereinabove, the respondent filed a

revisional application before the High Court of Delhi and by

the impugned order, the High Court had allowed production

of the document and directed that the said document be

taken on record. Before the High Court, a plea for rejection

of the aforesaid prayer of the respondent was raised that a

3 witness under Order XVI Rule 1 read with Rule 1-A of the

Code cannot produce documents as it envisages that a

witness can either adduce evidence or produce document in

Court. As noted herein earlier, the High Court allowed the

said document to be taken on record by allowing the

revision setting aside the order of the trial Court.

7. Feeling aggrieved and dissatisfied with the order of the

High Court, the appellant filed a Special Leave Petition,

which on grant of leave, was heard in presence of the

learned counsel for the parties.

8. We have heard learned counsel for the parties and

examined the provisions under Order XVI Rule 1 read with

Rule 1-A of the Code, under which the document was

directed to be produced and taken on record by the High

Court by reversing the order of the trial Court refusing to

take the document on record.

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9. The trial Court, as noted herein earlier, refused the

prayer for production of the document on a simple

interpretation of the word "production" as used in Order

XVI Rule 1 of the Code which, according to the trial Court,

would mean that the witness can be summoned to bring

the record to prove the documents placed on record by the

parties to the suit, but in the present case, the said

document was not produced by the respondent either along

with the plaint or at the time of framing of issues and,

therefore, no document can be taken on record at that

stage.

10. In our view, the High Court was justified in permitting

the document to be taken on record at the instance of the

witness PW-3. It is not in dispute that the copies of the

same cannot be placed on record by the respondent and

they can only be produced on record by summoning the

witness, who has the power and possession of the said

documents. It is an admitted position as well that since the

respondent is simply a member of the society, question of

5 being in possession of the record showing the completion of

the construction of the suit premises could not be with the

plaintiff/respondent whereas the said document must be

with the society, whose President came forward to give

evidence and to produce the documents.

11. Order XVI of the Code deals with summoning and

attendance of witnesses. The Court under Order XVI Rule

1, on or before the date, may appoint but not later than 15

days after the issues are settled, the parties shall present in

Court a list of witness whom they propose to call either to

give evidence or to produce documents and obtain

summons to such persons for their attendance in Court.

Order XVI Rule 1-A, however, gives a right to a party to a

suit to produce witness without summons. Order XVI Rule

1-A of the Code runs as under :-

"Rule 1A : Production of witnesses without summons - Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents."

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12. A plain reading of this provision would clearly show that

Rule 1-A of Order XVI of the Code has been substituted

by the Legislature to empower a party to bring any

witness without obtaining summons subject to the

permission of the Court, even if the name of the witness

is not in the list to be presented within 15 days of

settlement of issues. After issues were framed, the

respondent in order to prove the date of completion of

construction of the Society in which the suit premises is

located, summoned Sh. Pawan Kumar Vasudeva, the

President of the Society, (PW-3) to bring the record of

completion of construction of the suit premises which is

located in the said area of the Society. The trial court

had allowed the summoning of the President of the

Society for the purpose of showing the time of the

completion of construction of the suit premises. PW-3

identified his signature on Ext.PW-1/3 which was the

certificate issued by the said society to the respondent.

Thereafter, the said witness produced the documents of

completion of construction of the society which were

7 summoned by the respondent, but the trial court by the

order dated 2nd of May, 2006 rejected the application

and did not allow the witness to place the documents

brought by him on record on the ground mentioned

herein earlier.

13. As noted herein earlier, the High Court has reversed the

order of the trial court and allowed production of the

document produced by PW-3. In our view, there is no

ground for which we can hold that the order of the High

Court was not properly passed. As noted herein earlier,

Order XVI Rule 1 and 1-A of the Code, if read together,

would clearly indicate that it is open to a party to

summon a witness to the Court or even may, without

applying for summons, bring a witness to give evidence

or to produce documents. Since Rule 1A is subject to

the provisions of sub-Rule 3 of Rule 1, all that can be

contended is that before proceeding to examine any

witness, who might have been brought by a party for the

purpose, the leave of the Court may be necessary. This

8 by itself would not mean that Rule 1-A was in derogation

to sub-Rule 3 of Rule 1. Such document brought by the

said witness can be taken on record and it is not

necessary that the plaintiff must have filed on record the

copies of the said document earlier. Be it mentioned

herein, the question of filing a copy of the said document

by the plaintiff could not also arise in view of the fact

that the document was or cannot be in possession of the

plaintiff-respondent. Since the plaintiff-respondent was

simply a member of the Society, therefore, the record of

completion of the construction of the suit premises can

only be proved by the plaintiff/respondent by production

of documents which was only in possession with the

Society. While considering the scope of Order XVI, Rule

1 and Rule 1A of the Code, this Court in Mange Ram

Vs. Brij Mohan & Ors. [AIR 1983 SC 925] held that the

Court cannot decline to examine the witnesses produced

by the plaintiff nor the court could refuse to take the

documents on record through the witnesses. In para 11

of the said decision, this Court observed as follows :- 9

"But if on the date fixed for recording the evidence in an election petition, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A." (Emphasis Supplied)

14. Again in Vidhyadhar Vs. Manikrao & Anr.[1999 (3)

SCC 573], this Court following the decision of Mange Ram

vs. Brij Mohan & Ors. [supra] has also held that Order

XVI, Rule 1 and Rule 1A of the Code permits the court to

pass the order directing the witnesses to take the

documents on record. Only, while dealing with the

application for production of documents under Order XVI

Rule 1 read with Rule 1-A of the Code, what is required was

that, leave of the court would be necessary. In this view of

the matter and applying the principles laid down in the

aforesaid two decisions of this Court, we are not inclined to

interfere with the impugned order of the High Court by

which the High Court had allowed the documents to be

10 taken on record to prove the date of completion of the

construction of the suit premises within the area of the

Society. At the risk of repetition, it must be stated that the

date of construction of the suit premises, which is located

within the area of the Society, cannot be proved except by

the production of the document of the society which could

only be produced by the Society.

14.For the reasons aforesaid, there is no merit in this

appeal. The appeal is thus dismissed. There will be no

order as to costs.

........................J. [Tarun Chatterjee]

New Delhi; .......................J.

February 11, 2009. [V.S.Sirpurkar]

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