HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4707 of 2014 Date : 19-12-2014 Between:
Gurram Bixam, S/o.Narayana, 48 years, Occ: Business, R/o.H.No.35-321, Prakash Nagar, Miryalaguda Town, Nalgonda District.
… Petitioner and Pelapolu Satyanarayana, S/o.Peda Mattaiah, 62 years, Occ: Agriculture, R/o.Jepthiveerappagudem village, Miryalaguda Mandal, Nalgonda District.
… Respondent HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4707 of 2014 ORDER:
The defendant in O.S.No.195 of 2009 on the file of the Court of Additional Junior Civil Judge, Miryalaguda, Nalgonda District, is the petitioner in the present revision filed under Article 227 of the Constitution of India. This revision assails the order passed by the said Court on 02.12.2014, dismissing the I.A.No.71 of 2014 filed by the defendant/ petitioner herein under the provisions of Order 16 Rules 1 and 2 r/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter will be referred to as ‘the Code’).
The respondent herein instituted the suit for perpetual injunction in respect of 315 square yards in Sy.No.797 of Miryalaguda town, Nalgonda District. Resisting the said suit, the defendant/petitioner herein filed a written statement. In the said suit, the defendant filed the present application in I.A.No.71 of 2014 under Order 16 Rules 1 and 2 r/w Section 151 of the Code to issue summons to one Sri Aechuri Srinivas, son of Krishna Murthy, to give evidence as D.W.5 on his behalf. Resisting the said application, the plaintiff/respondent herein filed a counter. The learned Junior Civil Judge, by virtue of an order dated 02.12.2014, dismissed the said application.
This revision calls in question the said order passed by the learned Additional Junior Civil Judge, Miryalaguda, Nalgonda District.
Heard Smt. S.Annapurna, learned counsel for the defendant/ petitioner herein and Sri V.Venugopal Rao, learned counsel for the plaintiff/ respondent herein, apart from perusing the material available before the Court.
Challenging the legal substantiality of the order impugned, it is contended by the learned counsel for the defendant/petitioner herein that the order passed by the learned Junior Civil Judge is erroneous, contrary to law and is opposed to the provisions of Order 16 Rules 1 and 2 of the Code. It is further contended by the learned counsel that it would be highly essential to issue summons to the proposed witness for doing complete justice. It is nextly contended by the learned counsel that since the petitioner satisfied the ingredients of Order 16 Rules 1 and 2 of the Code, the learned Junior Civil Judge is not justified in rejecting the application. It is further contended that if the application is allowed, the same will not cause any prejudice to the other side. In support of her contentions, the learned counsel places reliance on a judgment of this Court in General Manager, South Central Railway, Secunderabad v. Alapati Viswanatham.
Per contra, supporting the order under challenge, it is strenuously contended by the learned counsel for the plaintiff/respondent herein that the order passed by the learned Junior Civil Judge is in accordance with the provisions of Order 16 Rules 1 and 2 of the Code and there is no illegality nor any fundamental infirmity in the impugned order which warrants interference of this Court under Article 227 of the Constitution of India. It is nextly contended by the learned counsel that as the petitioner herein did not satisfy the necessary ingredients of clause (3) of Rule 1 of Order 16 of the Code, the petitioner herein is not entitled to any indulgence of this Court under Article 227 of the Constitution of India.
In the above backdrop, now the issues which this Court is called upon to answer in the present revision are:
a. Whether the order under challenge is in conformity with the provisions of Order 16 Rules 1 and 2 of the Code? and
b. Whether the order impugned requires any correction by this Court under Article 227 of the Constitution of India?
In the present case, the respondent herein filed the suit for perpetual injunction in the month of June, 2009, and resisting the plaint averments, the petitioner herein filed written statement in the month of October, 2009. The petitioner herein filed the present application in I.A.No.71 of 2014, seeking to issue summons to the proposed witness as D.W.5 on his behalf. The provision of law which is relevant and germane for the purpose of adjudicating the issue in the present revision is Order 16 Rule 1 of the Code, which reads as under:
" 1. List of witnesses and summons to witnesses.
(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by parties on an application to the Court or to such officer as may be appointed by the [Court in this behalf, within five days of presenting the list of witnesses under sub-rule (1).]"
A reading of clause (3) of Rule 1 of Order 16 of the Code makes it evident that the Court is authorized to permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), subject to recording reasons. Another mandatory requirement as per the said provision of law is that the party applying for the same shall assign sufficient cause for the omission to mention the name of such witness in the list. In the instant case, as evident from the affidavit filed in support of the application, the petitioner herein did not assign any reasons for the omission of the proposed witness in the list of witnesses. Therefore, the lack of said sufficient information as per the said provision of law is fatal to the case of the petitioner herein.
A perusal of the order impugned clearly and categorically discloses that the Court below took into consideration the conduct of the defendant and also the order passed by this Court in C.R.P.No.2244 of 2014 and passed impugned order, rejecting the request of the petitioner herein. In the case of Alapati Viswanatham‘s case (1 supra), this Court held that the summons can be issued to persons to be examined as witness even in cases where no list of witnesses is filed, subject to the satisfactory reasons given by the parties seeking such relief. In the instant case, the petitioner herein did not assign any reasons absolutely in the affidavit filed in support of the application. Therefore, the principle laid down in the said judgment would not render any assistance to the petitioner herein. It is a settled and well established proposition of law that unless the order impugned suffers from fundamental infirmity, foundational defect and jurisdictional error, the jurisdiction of this Court cannot be invoked under Article 227 of the Constitution of India. Since the Court below assigned cogent and convincing reasons for rejecting the relief, this Court finds absolutely no justification to meddle with the order passed by the Court below.
For the aforesaid reasons, the civil revision petition is dismissed. No order as to costs. As a sequel, miscellaneous petitions, if any pending in this civil revision petition, shall stand closed.
A.V.SESHA SAI, J Date: 19.12.2014
siva
HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4707 of 2014 Date : 19-12-2014 siva