Abdu Rahiman vs Mahendra Ajani and Others

Paripoornan, J.—These two revisions are filed by the 1st Respondent in I.A. Nos. 125 and 123 of 1983 in O.S. No. 438 of 1982 on the file of the Subordinate Judge''s Court, Tellicherry. The revision Petitioner is the Defendant in this suit. The Plaintiff in the suit as also Defendants 2 to 4 are the Respondents in these civil revision petitions. The said I.A. Nos. 125 and 123 of 1983 were filed by the Plaintiff in the suit against the revision Petitioner (1st Defendant) and Respondents 2 to 4 (Defendants 2 to 4 in the suit). The said interlocutory applications were filed by the Plaintiff in the suit under Order XVI, Rule 14 read with Section 151 of the Civil Procedure Code, praying that the court may be pleased to summon the Nedungadi Bank, Gannanpre and the Canara Bank, Cannanore to cause production of the documents mentioned in the affidavit. O.S. 438 of 1982 was filed by the 1st Respondent herein stating that the proprietory concern "ARES SPICES" owned by the 1st defendant, revision Petitioner herein, along with other establishments belonging to Defendants 2 to 4 utilised the Plaintiff�s services as commission agent and obtained bulk orders through him. The suit was filed to recover a sum of Rs. 56,238 being the commission due from the revision Petitioner for the turn-over of the business solicited by the Plaintiff. After the filing of the suit and even before the notices were served on the defendants; the Plaintiff filed LA. No. 125 of 1983 and LA. No. 123 of 1983 under Order 16, Rule 14 of the CPC to summon Nedungadi Bank, Cannanore and Canara Bank, Cannanore to produce the accounts and other documents relating to the accounts of the petitioner. The Plaintiff alleged certain corrupt practices. The Petitions were filed on 12th January 1983. The court below heard the Plaintiff�s counsel and passed an order in both the interlocutory applications. The court adverted to the allegation of the Plaintiff that the Defendant have committed corrupt practice and that the documents mentioned in the affidavit are quite essential for proving the case of the Plaintiff and that if no emergent summons is issued, Defendants will be able to influence the bank to conceal these documents. Placing reliance on the decision reported in Khaji Khanavar Khadirkhan Hussain Khan and Others Vs. Siddavanballi Nijalingappa and Another, the court observed:

In the light of this decision it can be seen that the fear of the Plaintiff is well-founded. There is nothing impossible for a determined man. Hence it is only proper that the documents are summoned.

The petition is allowed. The Plaintiff is to pay batta. The witnesses may cause production of the document on 17th January 1983.

Substantially a similar order was also passed in I.A. No. 125 of 1983 on the same day. Whereas I.A. 125 of 1983 was directed against Nedungadi Bank, Gannanore, I.A. 123 of 1983 was directed against Canara Bank, Cannanore.

The 1st Defendant has filed the revision Petitions from the aforesaid orders passed by the court below. On facts, the revision Petitioner disputes the claim and the basis of the claim put forward by the Plaintiff in the suit. Counsel for the revision Petitioner Mr. M.A. Manhu attacked the order of the court below as totally without jurisdiction. Counsel contended that the court below misconstrued Order XVI, Rule 14 of the CPC and has exercised a jurisdiction not vested in it by law. It is common ground that at the time when the interim applications were made before court below, even summons were not served en the Defendants. Counsel contends that the provisions of Order XVI, Rule 14 are not attracted to such cases. The court below has also exercised the jurisdiction illegally and with material irregularity. The orders passed by the Courts below if allowed to stand would occasion failure �f justice and have also caused irreparable injury to the revision petitioner. On these premises the orders are sought to be set aside. On the other hand, the counsel for the Plaintiff, 1st Respondent, contends that the court below had jurisdiction to pass the impugned order, and places reliance on the provisions of Order XVI, Rule 14 of the CPC (only). According to counsel, even it is not so, the impugned order will not be "a case decided" so as to enable this Court to exercise revisional jurisdiction. It is also contended that there is no error of jurisdiction and that by the impugned order, there is no failure of justice nor will irreparable injury be caused to the revision petitioner.

Since the entire controversy centres round the scope of Order XVI, Rule 14 of the CPC it is useful to extract the said provisions:

Court may of its own accord summon as witnesses strangers to suit.-- Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the court at any time thinks it necessary (to examine any person, including a party to the suit) and not called as a witnesses by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed and may examine him as a witness or require him to produce such document.

(emphasis supplied)

In the decision reported in Bishwanath Rai Vs. Sachhidanand Singh, at page 1952 the court held:

Of course, the manner in which the Appellant could obviously challenge this letter was by examining Swamiji himself as a witness. Instead of examining Swamiji as a witness, the Appellant adopted the procedure of making an application to the High Court to sumnon him and examine him as a Court witness. That request was first put forward at a very early stage before examination of witnesses of parties had commenced. The court rightly held that it was too early a stage for the Court o come to a finding whether the examination of Swamiji as a Court witness was necessary. Such an opinion could only be formed after evidence of parties was over. The Appellant was, therefore, directed to move the application at the appropriate stage....

The case before the Supreme Court arose under the Representation of peoples Act. That Act enjoins that all the powers under the Code (Code of Civil Procedure) can be exercised aid all the procedure as far as may be applicable to the trial of Civil Suits may be followed in the trial of election petitions. The decision was rendered in the light of Order "XVI, Rule 14 of CPC being applicable to the trill of election petitions. It is evident from the language used in Order XVI, Rule 14 of the CPC and in particular the words " and not called as a witness by a party to the suit" and the above observations by the Supreme Court, that the court cannot exercise the power under Order XVI, Rule 14 before examination of the parties had commenced and that it could be done only after evidence of the parties are over. In this case, admittedly even summons were not served on the Defendants. It was too early a stage for the trial court to exercise the power vested in it under Order XVI, Rule 14 of the Code of Civil Procedure. I am of the view that the Court below had no jurisdiction to pass the impugned order at the threshold of the suit and to summon the Bank Managers concerned to cause production of the documents mentioned in the affidavit of the Petitioner in exercise of its powers vested in it under Order XVI, Rule 14 of the CPC The decision of the Supreme Court referred to by the court below in Khaji Khanavar Khadirkhan Hussain Khan and Others Vs. Siddavanballi Nijalingappa and Another, was misunderstood. In my opinion, the Court below exercised the jurisdiction not vested in it by law, at the time, it passed the impugned order. It can also be said that the court acted in the exercise of jurisdiction, if any, illegally or with material irregularity. The decision relied on by the Khaji Khanavar Khadirkhan Hussain Khan and Others Vs. Siddavanballi Nijalingappa and Another, (at p. 1044) has only followed its earlier decision reported in R.M. Seshadri Vs. G. Vasantha Pai, . In the said decision at page 698 in paragraphs 16 and 17, it is observed that in the face of the voluminous evidence addused in the case, the trial Judge reached the conclusion that in view of the fact that a larger number of cars were used for conveying voters to the polling booths, he felt impelled further to consider who was responsible for hiring them. In that behalf he summoned the witnesses. Such a stage or situation was not reached in this case.

It is obvious that the court below has totally misconstrued Order XVI, Rule 14 of the CPC and exercised the jurisdiction not vested in it by law at the relevant stage of the suit. If that be so, there is an error of jurisdiction in the orders of the court below. The argument of the 1st Respondent that in view of the language of order XVI, Rule 14 the power under Order XVI, Rule 14 can be exercised " at any time", even at the threshold of the suit, is not warranted by the terms of Order XVI, Rule 14 of CPC The further argument that the order impugned even if passed without jurisdiction is not "a case decided" by a subordinate court lacks substance. For the purpose of Section 115 of the CPC a case decided need not be a case ''finally" decided. All that it means is that the decision should terminate a part of the controversy involving the question of jurisdiction. In the light of the explanation to Section 115 Code of Civil Procedure, it is futile to contend that the orders impugned herein do not come within the expression "case decided." The further plea of the 1st Respondent that there is no jurisdictional error in the impugned orders is devoid of substance. The court below has purported to act under Order XVI, Rule 14 of the Code of Civil Procedure. It is evident that on the language of the said statutory provision Order XVI, Rule 14 CPC and as held by the Supreme Court in the decision reported in Bishwanath Rai Vs. Sachhidanand Singh, the court below committed a serious error of law. This error of law committed by the court below is vital and it has got relation to and is concerned with the question of jurisdiction. So Section 115 of CPC is applicable. The argument that there is no case made out for interference u/s 115 of the CPC is without force. The decision of the Supreme Court reported in Shri M.L. Sethi Vs. Shri R.P. Kapur, fortifies the above view. There is no substance in the argument of the counsel for the Respondent, that even if the orders impugned are allowed to stand, there is no failure of justice nor irreparable injury to the revision Petitioner within the meaning of the proviso to Section 115 of the C.P.C. and so this Court should not exercise its revisional jurisdiction. It need hardly be said that the relationship between the Petitioner and the Bank is a confidential one, where there is mutual trust and confidence. The counsel for the revision Petitioner contends that by the manner and method and the allegations on the basis of which the Plaintiff moved the court and obtained an ex parte order against the revision Petitioner even before summons could be served on the defendant, has itself caused substantial and irreparable injury to him in that his reputation and creditworthiness is substantially injured or impaired in the eyes of the bank and other respectable persons. "Manifest injustice" has resulted due to the above unwarranted and unjustified step taken by the Plaintiff. There is substance in this plea. I am of the view that if the order is allowed to stand it will cause irreparable injury to the revision petitioner.

In the result the orders passed by the court below in I.A. Nos. 125 and 123 of 1983, dated 12th January 1983 are set aside. The civil revision Petitions are allowed with costs.