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2018 Supreme(J&K) 591
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SANJAY KUMAR GUPTA, J.
Manorma Sharma - Petitioners
Versus
Sahib Saran Khajuria and others - Respondents
OW-104 No. 134 of 2017, IA No. 01 of 2017
Decided On : 14-09-2018
For the Petitioners:Mr. Ashwani Thakur, Advocate.
For the Applicant/Respondent:Mr. L.K. Sharma, Sr. Advocate., M/s P.R. Sharma and Surinder Singh, Advocates.
The obligation of a party to produce witnesses or file their affidavits as per the statutory principle of witness examination.
Headnote:
writ petition - enforcement of appearance of witnesses - Order XVIII Rule 4 and 5 of the CPC - The court discussed the statutory principle of witness examination and the petitioner's obligation to produce witnesses or file their affidavits. The court referred to the judgments of the Apex Court and Andhra Pradesh High Court to interpret the provisions. The court found that the petitioner's aim was to linger on the matter and dismissed the petition.
Fact of the Case:
The petitioner sought quashing of an order directing her to file affidavits of her witnesses in a pending partition suit. The petitioner argued that she cannot produce the witnesses on her own and should not be compelled to file their affidavits.
Finding of the Court:
The court found that the petitioner's aim was to delay the proceedings and dismissed the petition, stating that the trial court should decide the matter expeditiously.
Issues: Enforcement of appearance of witnesses, interpretation of Order XVIII Rule 4 and 5 of the CPC, petitioner's obligation to produce witnesses or file their affidavits.
Ratio Decidendi: The court interpreted the statutory principle of witness examination and found that the petitioner's aim was to delay the proceedings.
Final Decision: The petition was dismissed, and the trial court was directed to decide the matter expeditiously.
1. In the instant writ petition, the petitioner seeks quashing of order dated 25th October, 2017 passed by the Principal District Judge, Jammu, whereby petitioner has been directed to file affidavits of his witnesses.
2. The facts in nutshell are that the Suit for partition by meets and bounds, in which the petitioner is one of the defendants, is pending trial in the Court of Principal District Judge, Jammu. The petitioner has already submitted a list of witnesses, which is on the record of the suit file. There is a prayer on behalf of the petitioner for summoning the witnesses in accordance with law and she is not in a position to bring them to the Court for their evidence on her own nor can secure affidavits from them. They will appear only if summons from the Court are served on them. The Principal District Judge, Jammu, however, taking cognizance of the fact of filing of the list of witnesses by the petitioner, obliviously in accordance with law, but without following the course of law to summon them, has directed her to file their affidavits. The petitioner has brought it to the notice of the Court that the witnesses have to be first summoned as the petitioner cannot produce them on her own or secure their affidavits, and then ask if they want to give evidence on affidavit. In such circumstances, the petitioner cannot be compelled to produce the witness on her own or be required to file their affidavits.
3. The aforesaid impugned order has been challenged by the petitioner on the grounds that the normal course for enforcement of appearance of the witnesses is through summons by the Court, unless, of course, the party citing witnesses can produce them on their own. The entire scheme of Order XVI rests on the aforesaid statutory principle. Under Order XVIII Rule 4 of the Code of Civil Procedure, examination-in-chief of the witnesses can be allowed on affidavits, but it does not require a party, citing witnesses for evidence on his/her behalf to produce them on his own or file their affidavits. In no event, the party can be compelled to produce such a witness or secure his affidavit.
4. Learned counsel for the petitioner relies upon the judgment of Apex Court, rendered in case titled, “Salem Advocate Bar Association, Tamil Nadu vs. Union of India”, reported in AIR 2003 Supreme Court 189 and judgment of Andhra Pardesh High Court, rendered in case titled, “Rita Pandit Vs. Atul Pandit”, reported in AIR 2005 Andhra Pradesh 253. Whereas counsel for the respondent-plaintiff has stated that in terms Order XVIII Rule 4 and 5 of the CPC, in every case, examination-in-chief of witness shall be on affidavit. He has also argued that main aim of defendant/petitioner is to linger on the matter and setting at naught the direction passed by this court.
5. I have considered the rival contention of the learned counsel for the parties.
6. Order XVIII Rule 4 and 5 of the CPC reads as under:-
“4. Witnesses To be examined in open Court
The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.
5. How evidence shall be taken in appealable cases
In case in which an appeal is allowed the evidence of each witness shall be,-
(a) taken down in the language of the Court,-
(i) in writing by, or in the presence and under the personal direction and superintendence of the Judge, or
(ii) from the dictation of the Judge directly on a type-writer, or
(b) if the Judge, for reasons to be recorded, so directs recorded mechanically in the language of the Court in the presence of the Judge.”
7. Petitioner is the defendant No.2 in the case pending before the Court below. In terms of judgment dated 21st October, 2016, rendered in Petition u/s 104 No.90 of 2014, this Court directed the Court below to conclude the proceedings within a period of six months. The concluding para of the aforesaid judgment reads as under:-
“14. At this stage, learned counsel for the petitioner
