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2012 Supreme(Mad) 4188
High Court of Judicature at Madras
R.S. RAMANTHAN, J.
Balachander
Versus
Vayyapuri
C.R.P.(PD) Nos. 3169, 2193 & 2395 of 2012 & M.P. Nos. 1 of 2012 (two Petitions)
Decided On : 12-10-2012
For the Petitioner:S. Venkatesan, Advocate.
For the Respondent:P. Valliappan , Advocate.
The Court's discretion to summon a witness as a Court Witness under Order 16, Rule 14 of the Code of Civil Procedure is subject to the party making a valid case for summoning the witness. The Court also has the authority to direct the lower court to dispose of a Suit within a specified time frame.
Headnote:
Evidence Act - Examination of Court Witness - Order 16, Rule 14 of the Code of Civil Procedure - Summary
Fact of the Case:
The Plaintiff filed a Suit for recovery of money based on pro-notes executed by the Defendant. The Defendant sought to summon a witness and recall a witness for further cross-examination.
Finding of the Court:
The Court found that the Defendant failed to make a case for summoning the witness and recalling the witness. The Court also directed the lower court to dispose of the Suit within four months.
Issues: 1. Whether the Defendant made a case for summoning a witness as a Court Witness. 2. Whether the Defendant had valid reasons for recalling a witness. 3. Whether the lower court should be directed to dispose of the Suit within a time frame.
Ratio Decidendi: The Court held that the Defendant did not establish a valid reason for summoning the witness as a Court Witness and for recalling a witness. The Court also directed the lower court to dispose of the Suit within four months.
Final Decision: C.R.P. No.3169 of 2012, C.R.P. No. 2193 of 2012, and C.R.P. No.2395 of 2012 were dismissed. The lower court was directed to dispose of the Suit within four months.
1. Defendant is the Revision Petitioner in C.R.P. (PD) Nos. 2193 & 3169 of 2012. The Plaintiff is the Revision Petitioner in C.R.P. (PD) No.2395 of 2012.
2. The Plaintiff filed the Suit in O.S. No.594 of 2003 for recovery of money on the basis of the pro-notes executed by the Defendant. In the Suit, the Plaintiff examined himself as PW1 and also examined another witness as PW2 and the Defendant also examined himself as DW1. At that stage, the Defendant filed Application under Section 154 of the Evidence Act for the issuance of summons to one Palanichamy as Court Witness and that Application was dismissed and against the same, C.R.P. (PD) No.3169 of 2012 was filed.
3. The Defendant also filed an Application to recall PW1 for further cross-examination and that Application was dismissed and against that C.R.P. (PD) No.3169 of 2012 was filed.
4. It is submitted by the learned Counsel for the Revision Petitioner/ Defendant that the Respondent/Plaintiff filed the Suit on the basis of six pro-notes dated 7.7.1997 alleged to have been executed by the Revision Petitioner/ Defendant and the Revision Petitioner has taken the defence that the pro-notes are fabricated and he borrowed money from one Palanichamy and executed various blank pro-notes as demanded by the said Palanichamy and the said Palanichamy filed a Suit against the Revision Petitioner/ Defendant and also gave other blank pro-notes to the Respondent/Plaintiff for filing the present Suit and the Suit filed by Palanichamy in O.S. No.232 of 2004 was also decreed and therefore, to prove that the pro-notes relied upon by the Respondent/Plaintiff were given by Palanichamy, the said Palanichamy has to be examined as Court Witness and as the said Palanichamy has already filed the Suit against the Revision Petitioner, he cannot be examined on his side and therefore, he must be examined as Court Witness and without appreciating the same, the Court below erred in dismissing the Application holding that the Application ought to have been filed under Order 16, Rule 14 of the Code of Civil Procedure and the Application was filed under Section 154 of the Evidence Act and therefore, the Application was not maintainable and the Court below ought not to have rejected the Application on the ground that wrong provision was quoted and under Order 16, Rule 14, the Court has got discretion to summon any person as witness and as per the judgment in Palanisamy, K.C. V. M. Chinnasamy, 2002 (4) CTC 222, when the Court feels that a person cannot give evidence in favour of a party, such person can be examined as Court Witness and considering the fact that Palanichamy filed the Suit against the Revision Petitioner, he cannot be examined by the Revision Petitioner and his evidence is most important to decide the issue and that was not properly appreciated by the Court below.
5. He further submitted that PW1 was examined in the year 2009 and certain important facts are omitted to be asked to PW1 and for that purpose, he has to be recalled and that was not properly appreciated by the Court below.
6. On the other hand, Mr.P. Valliappan, learned Counsel for the Respondent/ Plaintiff submitted that under Order 16, Rule 14, the Court has to summon a person as Court Witness on its own initiative and it cannot be ordered on the Application filed by a party to Suit and therefore, the Application filed by the Revision Petitioner even assuming to be under Order 16, Rule 14 of the Code of Civil Procedure is not maintainable. He further submitted that the evidence of Palanichamy is not at all relevant to decide the issue and the Respondent/ Plaintiff filed the Suit on the basis of the pro-notes and it is for the Defendant/ Revision Petitioner to prove that the pro-notes were not executed by him in favour of the Respondent/Plaintiff and for that purpose, there is no need to examine Palanichamy and the Court below has also rightly observed that the Petitioner could have summoned the said Palanichamy as his wi
