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2018 Supreme(HP) 611
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANJAY KAROL, J.
Ramesh Chand & another - Petitioners
Versus
Shiv Chand & others - Respondents
CMPMO No. 298 of 2016
Decided On : 13-08-2018
For the Petitioners: Mr. Satyen Vaidya, Mr. Vivek Sharma
For the Respondents: Mr. G.C. Gupta, Ms. Meera Devi
The interest of justice and expeditious disposal of the case are paramount in allowing the examination of a crucial witness on commission.
Headnote:
Order 26 Rule 1E-4A - Examination of Witness - Code of Civil Procedure, 1908 - Rule 1, Rule 4-A, Section 151
Fact of the Case:
Defendants challenge rejection of their application to examine a witness on commission. Suit involves a dispute over ownership of land based on an agreement allegedly executed by defendants' mother in favor of the plaintiffs.
Finding of the Court:
The court finds that the examination of the witness is crucial to the outcome of the suit and allows the application under Order 26 Rule 1E-4A, read with Section 151 of the Code for examination of the witness.
Issues: The main issue is the rejection of the application to examine a crucial witness on commission and the delay in the trial process.
Ratio Decidendi: The court emphasizes the importance of expeditious disposal of the case and the necessity of examining the crucial witness. It cites legal provisions empowering the court to issue a commission for examination of witnesses and highlights the interest of justice as a key factor.
Final Decision: The court allows the application to examine the witness on commission and sets out terms for the examination and expedited trial.
Sanjay Karol, J.
Petitioners, who were defendants, in terms of the present petition, under Article 227 of the Constitution of India, lay challenge to the order dated 20th June, 2016, (hereinafter referred to as the “impugned order”), passed by learned Civil Judge (Junior Division), Court No. 4, Shimla in Civil Suit No. 66-1 of 2015/09, titled as Shiv Chand & Ors. vs. Ramesh Chand & another, whereby their application filed under Order 26 Rule 1E-4A read with Section 151 of the Code of Civil Procedure, 1908, (hereinafter referred to as the “Code”) stands rejected.
2. The reasons assigned by the learned Judge for rejecting the application are (a) despite 12 opportunities afforded, defendants have not examined their witnesses; and (b) there is no document on record evidencing the fact that the person sought to be examined on commission, is not in a position to appear in Court as a witness.
3. With vehemence, Mr. G.C. Gupta, learned Senior Counsel appearing for the plaintiffs, opposing the petition, emphasizes there being no illegality and perversity in the impugned order.
4. On the other hand, Mr. Satyen Vaidya, learned Senior Counsel, emphasizes perversity in the impugned order on account of non consideration of attending facts and circumstances.
5. Plaintiffs (respondents herein) filed a suit for declaration, claiming themselves to be owners-in-possession of the suit land. The defendants, as is evident from the written statement, have vehemently opposed the same.
6. From the pleadings of the parties it can be inferred that the suit is primarily based on an agreement allegedly executed by the defendants’ mother in favour of the plaintiffs/their predecessor-in-interest. The agreement which is in the shape of a receipt is attested by two persons as witnesses, one of whom, i.e., Dila Ram, is alive and the defendants want him to be examined on a commission. This Court is of the considered view that testimony of this witness shall have a direct bearing on the outcome of the suit.
7. Record reveals that suit was instituted on 8.1.2009. The issues were struck on 15.7.2011, whereafter plaintiffs filed an application, seeking amendment of the plaint and it took more than one year for such application to be decided, vide order dated 28.5.2010.
8. The replication to the amended written statement and the counter claim was filed on 8.12.2010, whereafter an endeavour was made by the Court to have the matter amicably resolved, but on 15.11.2011, the Court recorded that such attempt did not yield any result. Accordingly, fresh issues were framed and the matter was kept for recording of plaintiffs’ evidence. It took more than one year for the plaintiffs to complete their evidence. It is equally true that since the year 2012, defendants have taken several opportunities for completing their evidence. Though it be also observed that it is not a case of total non production/non-examination of any witnesses, it took time for the defendants witness to be examined.
9. Record reveals that on 22.10.2014, the very witness who is now sought to be examined on commission, was present in the Court, but was discharged as a request was made by both the counsel to have the matter adjourned for the reason that “they have to go due to some urgent work”. Subsequently, application in question was filed on 8.10.2015, which now stands disposed of vide impugned order dated 20.6.2016.
10. Record does establish that more than 12 opportunities were afforded to the defendants to examine their witnesses, but it is not one of those cases where no witness was examined or was not present. On one count or the other, for several reasons, inter alia, “adjournment by counsel”, “Presiding Officer on leave”, and “relevant witness not present”, the matter was adjourned. As such, it cannot be said that the conduct of the defendants alone has resulted into procrastination of trial.
11. A bare perusal of the document, which is sought to be proved, reveals the witness Dila Ram to be a rust
