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IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, J.
Atul Kumar Singh - Plaintiff
Versus
Nitish Kumar & Others - Defendants
CS(COMM) 258 of 2018, CC.25 of 2011, I.As. 3333 of 2018, 4210 of 2018, 4827 of 2018 & 16560 of 2018
Decided On : 13-11-2019
Summoning of Witness - Application under Order XVI Rule 1 - CPC - 1978 1 SCC 10, AIR 1967 KANT 37, AIR 1993 Patna, AIR 2001 Mad 410, (1904) 14 MLJ 329, AIR 2006 Gujarat 66 - The court discussed the application filed by the plaintiff to summon Nitish Kumar as a witness, citing various judgments in support. The defendant opposed the application, relying on judgments to argue that it was an abuse of process. The Division Bench remanded the matter back to the learned Single Judge for fresh consideration.
Fact of the Case:
The plaintiff, a Senior Research Scholar, alleged violation of copyright in his work by the defendant, the Chief Minister of Bihar. The plaintiff sought to summon the defendant as a witness to establish the violation.
Finding of the Court:
The court found that the plaintiff's reasons for summoning the defendant as a witness were not convincing and not in the interest of justice. It dismissed the application, stating that the defendant's appearance as a witness would not prove the plaintiff's case and appeared to be an attempt to pressure the defendant.
Issues: Violation of copyright, entitlement to damages, and the nature of the work as a government publication were the key issues.
Ratio Decidendi: The court held that summoning the defendant as a witness was not necessary, as the plaintiff could cross-examine the defendant when he appeared to prove his case.
Final Decision: The court dismissed the application to summon the defendant as a witness.
Based on the provided legal document, the court's stance on summoning an opposite party as a witness is that such a step should only be taken in the rarest of rare cases, and only when it is necessary and in the interest of justice (!) (!) . The court emphasizes that the application for such a summons must be bona fide and not vexatious or an abuse of process (!) (!) (!) .
Furthermore, the court recognizes that there is no absolute bar to examining or summoning an opposite party as a witness, especially when the party is included in the list of witnesses and there are cogent reasons for doing so (!) (!) (!) (!) . However, the reasons must be substantial, and the application should not be made merely to pressure the opposite party or for publicity reasons (!) .
The court also highlights that the discretion to summon an opposite party as a witness should be exercised judiciously, considering the conduct of the parties and the relevance of the witness's testimony (!) (!) (!) . It is generally not in the interest of justice to call the opposite party solely to embarrass or harass them, and such practice is discouraged (!) (!) (!) .
In summary, the court's approach is to carefully scrutinize the necessity and bona fide nature of the application, ensuring that such a step is only permitted when absolutely necessary for the fair adjudication of the case and not as a tool for harassment or undue pressure (!) (!) (!) .
JUDGMENT :
V. Kameswar Rao, J.
I.A. 3333/2018
1. By this order I shall dispose of this application which has been filed by the plaintiff under Order XVI Rule 1 read with Section 151 CPC with the following prayers:
(a) Summon Nitish Kumar as the witness for the next date of hearing i.e. April 12, 2018 or any other earlier date; and
(b) Pass such other or further orders as this Hon’ble Court may deem fit and proper be passed.”
2. It is the case of the plaintiff in the application that witness No.1 in part C of the list of witnesses submitted by the plaintiff on April 07, 2016 which was duly served on all the defendants, is Shri Nitish Kumar, present Chief Minister of Bihar. He is also defendant No.1 in the present suit. According to the plaintiff, the said witness is significant and will have a material impact in establishing the case of the plaintiff, in order to bring on record further evidence with regard to the violation to authorship rights of the literary work titled as “Special Category Status: A case for Bihar” in which the defendant No.1 is the principal actor.
3. According to the plaintiff, even though the witness namely Shri. Nitish Kumar is also defendant No.1, there is no bar under the CPC to examine the opposite party as his own witness, more particularly when the defendant No.1 is included in the list of witnesses. In this regard, he has relied upon the following judgments in support of his contention:
(ii) Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 KANT 37;
(iii) Sri Awadh Kishore Singh and Anr. v. Sri Brij Bihari Singh and Ors., AIR 1993 Patna;
(iv) V.K. Periasamy alias Perianna Gounder v. D. Rajan AIR 2001 Mad 410;
(v) Virabadran Chetty and Ors. v. Nataraja Desikar, (1904) 14 MLJ 329; and
(vi) Pushpaben Champaklal Shah v. Rikhadev Tirthram Sharma & Ors., AIR 2006 Gujarat 66.
4. Mr. P.D. Gupta, learned Senior Counsel appearing for the defendant No.1 opposes the prayer on the ground that the application preferred by the plaintiff is barred by limitation under Order XVI Rule 1 itself, inasmuch as Order XVI Rule 1(4) mandates, application for summoning of witnesses mentioned in the list of witnesses produced be obtained, within 5 days from the date of presenting of list of witnesses.
5. That apart, it is his submission that the present application is an abuse of process inasmuch as Shri. Nitish Kumar / defendant No.1 can be cross-examined by the plaintiff at his evidence stage. In fact, he states that the present application is not bona fide and has been filed with ulterior motives as the defendant No.1 is the Chief Minister of the State of Bihar and the plaintiff wants to gain publicity. In support of his submission, Mr. P.D. Gupta has relied upon the following judgments:
(ii) Amitabha Sen v. Sports World International Ltd., 148 (2008) DLT 8;
(iii) Union of India v. M/s. Orient Engineering & Commercial Co., 1978 1 SCC 10;
(iv) Krithi Constructions v. K. Thippa Reddy, ILR 20156 Kar 122;
(v) Pirgonda Hongonda v. Wishwanath Ganesh & Ors., AIR 1956 Bom 251;
(vi) Kishori Lal v. Chunni Lal, 31 AII 166;
(vii) Mahunt Shatrugan Das v. Bawa Sham Das, AIR 1938 PC 59;
(viii) Mallangowda v. Gavissiddangowda, AIR 1959 Mys 194 (DB);
(ix) Kokkanda B. Poondacha & Ors. v. K.D. Ganapathi & Anr., AIR (2011) SC 1353; and
(x) Suresh v. Uttam, 2012 Bom CR 495.
6. Having perused the application and considered the record, before I deal with the submissions made by the learned counsel for the parties, it is necessary to state here that the I.A. 3333/2018 was initially decided by this Court vide order dated October 08, 2018 along with I.A. 4210/2018 filed under Order XVIII Rule 4 CPC, which is an application by the defendant No.1 seeking permission of the Court to examine himself by video conferencing. The said appli
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