IA No. 10065 of 2016 (of plaintiffs u/O XIV R-5 CPC) & IA No. 10917 of 2016 (of defendants u/O XVI R-1&2 CPC and Chapter XI Rule 1 of Delhi High Court (Original Side) Rules, 1967)

1. IA No. 10065 of 2016 first came up before this Court on 19th August, 2016, when the counsel for the defendants appeared on advance notice and the following order was passed:-

“1. The plaintiffs/applicants seek shifting of onus of the following issue:-

“Whether the present suit has been instituted by a competent and/or a duly authorised person? OPD”

from that placed on the defendants to that on the plaintiffs.

2. The counsel for the defendants appearing on advance notice states that the application is a guise to get over production of Mr. Achuthan Sreekumar of the plaintiffs summoned as a witness by the defendants and which order was challenged by the plaintiffs by way of FAO(OS) No. 171 of 2015 and which was dismissed on 1st August, 2016.

3. The counsel for the plaintiffs/applicants on enquiry whether the plaintiffs/applicants, in the event of this application being allowed, seek cancellation of the summons already issued for appearance of Mr. Achuthan Sreekumar states that the plaintiffs/applicants may do so. It is further contended that the defendants in their application for summoning of Mr. Achuthan Sreekumar had stated only the reason of onus of the aforesaid issue being on the defendants and since Mr. Achuthan Sreekumar is the signatory of the plaint.

4. The counsel for the defendants contends that the defendants had applied for summoning of as many as seven officials of the plaintiffs as witnesses to prove the aforesaid issue and to prove the following issues:-

“(i) Whether the plaintiffs are guilty of entrapment. OPD

(ii) Whether the suit is motivated in as much as it has been filed with malicious intent to discredit the defendants? OPD”

and of which the defendants were permitted to summon only three; though the defendants in their application for summoning had given only the reason to prove the issue about valid institution of the suit against the name of Mr. Achuthan Sreekumar but now that the defendants have been permitted to summon only three witnesses, if Mr. Achuthan Sreekumar also does not appear, the defendants would be prejudiced.

5. As per my understanding of law, the defendants having summoned Mr. Achuthan Sreekumar of the plaintiffs as a witness for specific purpose of examining him to prove that he was not authorised to institute the suit or to sign and verify the plaint, would not be entitled to examine him on any other aspect. The defendants, if now desire to examine Mr. Achuthan Sreekumar on any other aspect, will have to apply therefor.

6. The counsel for the defendants states that the application in that regard will be filed within a week.

7. It is deemed appropriate to consider both applications together. 8. List on 1st September, 2016.”

2. Thereafter, the defendants filed IA No. 10917 of 2016 and opportunity sought to file replies to both the applications was granted and arguments on both the applications heard on 22nd September, 2016 (IA No. 10065 of 2016 erroneously remained to be mentioned in the said order) and orders reserved.

3. As would be obvious from the aforesaid, the defendants have no objection to IA No. 10065 of 2016 of the plaintiffs, seeking to have the onus changed of the issue framed in the suit of valid institution thereof from that as placed on the defendants to that on the plaintiffs. The only objection of the defendants thereto was on the ground of the plaintiffs by seeking so inter alia dispensing with the production of the official of the plaintiffs summoned by the defendants as a witness and in which regard the defendants have already filed the other application; thus IA No. 10065 of 2016 of the plaintiffs is entitled to be allowed, keeping open the opposition by the defendants thereto for consideration while deciding the other application.

4. I may in this regard also notice that the onus of an issue