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IN THE HIGH COURT OF DELHI
V. Kameswar Rao, J.
Atul Kumar Singh - Appellant
Versus
Nitish Kumar - Respondent
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
Important Points
Subject
Civil Law - Procedure
Act Referred
Headnote
(B) Witness Examination - Principles governing the summoning of witnesses - Judgment highlights that while it is permissible to summon the opposite party, it should not be permitted lightly, or in cases perceived as vexatious or an abuse of process. (Paras 21, 25)
Facts of the case:
The plaintiff, a Senior Research Scholar, alleges copyright infringement involving his work titled 'Special Category Status: A case for Bihar', claiming defamation and loss of reputation due to the defendants’ actions. He seeks to summon a defendant as a witness.
Findings of Court:
The court found no merit in the application to summon the defendant due to lack of compelling reasons and considerations of potential abuse of process.
Issues: The main issues addressed were whether a party can summon the opposite party as a witness, and whether such an application can be considered genuine or is merely vexatious.
Ratio Decidendi: The court emphasized that the law does allow summoning of witnesses from the opposite side but highlighted that it should only be done in exceptional circumstances, assessing each application on its own merits, particularly examining motives.
Result: Application dismissed.
| Table of Content |
|---|
| 1. application for summoning witnesses. (Para 1) |
| 2. significance of witness in establishing case. (Para 2) |
| 3. no bar on examining opposite party as witness. (Para 3) |
| 4. defendant's opposition citing limitation and abuse of process. (Para 4 , 5) |
| 5. past orders and ongoing litigation context. (Para 6 , 8) |
| 6. application dismissed; remanded for fresh consideration. (Para 7) |
| 7. factual background of the plaintiff's research work. (Para 9 , 10 , 11 , 12) |
| 8. legal precedent concerning summoning of witnesses. (Para 21 , 22 , 23) |
| 9. considerations for summoning the opposite party. (Para 30 , 31) |
| 10. final dismissal of the application. (Para 35) |
JUDGMENT
V. Kameswar Rao, J. (Oral)
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:
"In view of the mentioned facts and circumstances, it is humbly prayed that this Hon'ble Court may be pleased to:
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:
(i) Union of India (UOI) v. Orient Engg. & Commercial Co. Ltd. and Anr., 1978 1 SCC 10;
(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:
(i) ONGC v. Vijay Mahajan, 237 (2017) DLT 158;
(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;
