This Civil Revision petition is directed against the order of the Additional District Judge, Fast Track Court I, Chengalpattu passed in I.A.No.682 of 2007 in L.A.O.P.No.52 of 2002.
2. The second respondent in L.A.O.P.No.52 of 2002 is the revision petitioner.
3. Aggrieved by the order of the learned Additional District Judge, Fast Track Court No.I, Chengalput, made in I.A.No.682 of 2007 by which the interim application filed by the first respondent/Claimant was allowed and the Chief Operating Officer of the revision petitioner is to be summoned by the first respondent/Claimant to give evidence and to produce relevant documents.
4. In L.A.O.P.No.52 of 2002, the first respondent/ Claimant prayed to fix the compensation at Rs.25,000/- per Cent of land besides the usual solatium as contemplated by the Provisions of the Land Acquisition Act. The revision petitioner is the second respondent/ requisitioning body for whom the lands were acquired by the Government. At the time of cross examining the second respondent/Special Tahsildar, questions were put to him about the extent of lands required by the revision petitioner and how much of the lands were reduced and how much of the lands are now in the hands of the revision petitioner and at what price they have purchased the lands from the second respondent/Government and for what price they have sold the property to third parties/foreign companies. For all these questions, the second respondent/Special Tahsildar simply answered that he did not know all these details. In so far as the revision petitioner is concerned, at the time of their evidence, they simply reported no evidence and thereafter, the case was posted for arguments. At that time, the first respondent/ Claimant filed I.A.No.682 of 2007 under Order VI Rule 6 and 7 C.P.C. to permit the first respondent/Claimant to summon Thiru B.G.Menon, Chief Operating Officer of the revision petitioner company to be present in the Court to give evidence and to produce relevant documents. The case of the first respondent/Claimant is that as the second respondent/ Government did not come forward to answer the above mentioned questions posed before the officers, the revision petitioner is the right person to answer those questions and therefore, the Chief Operating Officer of the revision petitioner is to be summoned to give evidence. This was resisted by the revision petitioner by filing a counter wherein they have stated the revision petitioner's Chief Operating Officer could not be summoned to answer the questions. By order dated 15.11.2007, the Additional District Judge, Chengalput allowed I.A.No.682 of 2007 and aggrieved by the same, the second respondent in I.A.No.682 of 2007 filed the above Civil Revision petition under
Article 227 of the Constitution of India.
5. This court on 27.02.2008 ordered notice regarding admission and granted an order of interim stay.
6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent and the learned Government Advocate (C.S.) for the second respondent. I have also gone through the entire documents available on record.
7. The learned counsel for the petitioner contended that being the opposite party in L.A.O.P.No.52 of 2002, the revision petitioner could not be summoned by the Claimant to give evidence that too, after the evidence was closed and the matter was posted for arguments. He further submits that what is to be decided in the LAOP is the proper price for the lands acquired and it is for the Claimant to prove the case that the lands are entitled to more compensation by adducing acceptable evidence. Therefore, according to the learned counsel for the petitioner, the trial court has committed an illegality by allowing the application filed by the first respondent/Claimant to summon the Chief Operating Officer of the revision petitioner. In support of his submission, the learned counsel for the petitioner relied on the following decisions:
1. 2001(3) C.T.C. 20 (V.K.Periasamy @ Perianna Gounder Vs D.Rajan)
2. 2005(2) TLNJ 137 (Jeyaseelan Vs Arulrajan and others)
3. (1996)3 SCC 129 (M.V.K. Gundarao Vs Revenue Divisional Officer (LAO), Narasaraopet)
4. A.I.R. 1933 MAD 821 (Appavoo Asary Vs Sornammal Fernandes)
8. Per contra, the learned counsel for the first respondent/Claimant submitted that the trial court has correctly allowed the I.A.No.682 of 2007 and the same need not be interfered with by this Court under
Article 227 of the Constitution of India.
9. I have considered the rival submissions carefully with regard to facts and citations.
10. In A.I.R. 1933 MAD 821 (cited supra), this Court held that no Court of law would be justified in ordering a party to appear in Court on an application under Order III Rule 1 C.P.C. except for very good reasons. Where one party desires persons of the opposite party to appear in Court for the purpose of examining him as a witness the proper procedure is to resort to Order XVI and not the one under the proviso of Order III Rule 1 C.P.C.
11. In 1996(3) SCC 129 (cited supra), the Hon'ble Supreme Court observed that the burden is on the Claimant to prove the prevailing market value as on the date of Sec.41 Notification and it is the duty of the Court to assess the prevailing market value applying pragmatic test.
12. In 2001(3) C.T.C. 20 (cited supra), this Court observed as follows:
"12. If there was a total bar on the right of a party to summon another party to give evidence as a witness, Order 16, Rule 21 C.P.C. will not find a place in the Code. The inclusion of this provision itself shows that there may be situations where a party may called upon by another to give evidence as the latter's witness. In fact, in Appavoo Asary V. Sornammal Fernandes, A.I.R. 1933 Mad. 821, the learned Judge held as seen from the passage extracted above that when one party desires the presence of other party, the proper procedure is under Order 16. Therefore, if there are very good reasons, the court may exercise its discretion in favour of the party seeking permission. The Case laws with regard to Order 18, Rule 2 are to the effect that even the defendants who support the case of the plaintiff are entitled to give evidence and it is in fact their right and they cannot be shut out. In this case, the first defendant is not the contesting defendant and from the averments in the affidavit, it is seen that he has been made a party only so that the suit would not be dismissed for non-joinder. The petitioner relies on a document in which the first defendant is a signatory recognizing the right which is claimed by the petitioner in the suit. This is also not a case where a party who avoids the witness box calls upon the other side to give evidence. Evidence has been adduced on the side of the petitioner and documents have also been marked. The petitioner wants to elicit evidence with regard to two of the exhibits to which the first defendant is a party. The reasons that prevailed in the minds of the Judges for condemning the practice of summoning the other side witness do not exist in this case. The first defendant is not strictly an opposite party and this is also recognized by the respondent herein whose pleading is that the interest of the petitioner and the other defendants are common. In these circumstances, I see no reason why this application under Order 16, Rule 21 should not be allowed. Of course, if the first defendant is examined on the side of the petitioner, the petitioner will be bound by the evidence elicited from the said witness. The order of the court below is therefore set aside. C.R.P. is allowed. No costs.
13. In the above decision, the learned Judge referred to a decision of this court reported in 1999(1) L.W. 660 (1999(1) M.L.J. 97 Kaliyaperumal Vs Pankajavalli and two others) wherein this Court held that the plaintiff was not entitled to examine the second defendant since the second defendant is the contesting respondent and the petitioner wants to examine the opposite party as their witness.
14. In 2005(2) T.L.N.J. 137 (cited supra), this Court after referring the very same judgment reported in 1999(1) M.L.J. 97 (cited supra) held that the petitioner cannot compel the second defendant to be examined as witness for him.
15. In the light of the above decisions, now, let me consider the facts of the present case to find out whether the court below has correctly allowed the I.A.No.682 of 2007.
16. Admittedly, the Claimant/first respondent is seeking enhanced compensation for the lands acquired by the Government before the Court below. The revision petitioner is the second respondent in L.A.O.P. No.52 of 2002 for whom the lands were acquired under the Land Acquisition Act. In such circumstances, the burden is on the Claimant to prove the prevailing market value as on the date of Sec.41 Notification and therefore, it is not open to the first respondent/Claimant to compel the revision petitioner to appear before the Court and to produce the documents.
17. It is no doubt true that there is not a total bar on the right of a party to summon another party to give evidence as a witness under Order XVI Rule 21 C.P.C. But, except for very good reasons, the party cannot compel the opposite party to be present in the Court to give evidence. In this case, it is for the first respondent/Claimant to prove the prevailing market value as on the date of Sec.41 Notification and for this purpose, it is not open to the first respondent/Claimant to compel the Chief Operating Officer of the revision petitioner company to enter the witness Box and to give evidence. Therefore, I am of the considered view that the Court below has committed an illegality in allowing I.A.No.682 of 2007 filed by the first respondent/Claimant as I do not find very good reasons for compelling the revision petitioner to give evidence.
18. Therefore, I am inclined to interfere with the order passed by the Court below in I.A.No.682 of 2007 and consequently, I.A.No.682 of 2007 filed by the first respondent/Claimant is dismissed and the order passed by the Court below on 15.11.2007 is set aside.
19. In the result, the Civil revision petition is allowed. No cost. Connected M.P.No.1 of 2008 is closed.
20. Considering the fact that L.A.O.P. is of the year 2002 and already it was posted for arguments, I direct the Court below i.e., the Additional District Judge, Fast Track Court I, Chengalput, to dispose of the L.A.O.P.No.52 of 2002 on merits and in accordance with law within a period of six weeks from the date of receipt of a copy of this order.
vaan To The Additional District Judge, Fast Track Court I, Chengalpattu