Mohan Agrawal vs Rahul Gupta

Sheel Nagu, J.—This petition filed under Article 227 of the Constitution of India assails the interlocutory order passed by 3rd Civil Judge Class II, Gwalior in case no. 127A/2013 on 24.07.2014, whereby three different applications of the defendant/petitioner herein have been decided. The first being an application under Order 16 Rule 1 and 2 CPC providing list of witnesses seeking issuance of summons, much after the time period prescribed for doing so, has been rejected. The second being an application under Order 13 Rule 10 CPC of the petitioner/defendant for summoning of certain documents has been rejected. Lastly, an application under Order 8 Rule 3 CPC of for taking certain documents on record, has been partly allowed, to the extent of allowing documents no. 1 to 6 to be taken on record, but disallowing taking of documents no. 7 to 9 on record.

Learned counsel for the rival parties are heard on the question of admission.

Learned counsel for the petitioner has contended that the impugned order is bereft of reason that the document sought to be produced are relevant. It is further contended that despite sufficient cause having been shown by the petitioner/defendant for his failure to produce the list of witnesses as contemplated by order 16 Rule 1(3) CPC, the said application is wrongly disallowed. It is further contended that application under Order 13 Rule 10 CPC was also wrongly rejected by recording wrong statements.

Perusal of the impugned order indicates that in respect of application under Order 16 Rule 1 and 2 CPC, where the trial Court declined the request for summoning of witnesses which has not been furnished earlier, the findings which have been recorded are to the effect that the trial was fixed for recording of evidence on 22.02.2013, when the petitioner did not furnished any list of witnesses. Thereafter, after elapse of seven months, when the plaintiff''s evidence came to an end on 17.12.2013, the application under Order 16 Rule 1(3) has now been filed on 07.07.2014 on the ground that the petitioner in fact had furnished the details of the witnesses to the earlier counsel, who failed to submit the list, whereafter the petitioner has engaged a new counsel, leading to filing of the application under Order 16 Rule 1(3) CPC. The trial Court in this respect has held that the reason arisen is not satisfactory, as it does not comply with the requirements of the Order 16 Rule 3 CPC by showing sufficient cause for omission to mention the name of witnesses earlier. The trial Court has further held that the defendant has further failed to disclose the purpose for which witnesses are proposed to be summoned.

The reason of having supplied the list of witnesses to the erstwhile counsel, who failed to submit the same before the Court leading to the defendant being compelled to engage a fresh counsel appears to be prima-facie plausible, which could not have been brushed aside by the trial Court without recording any finding of the said reason being incorrect or a mere excuse. It is trite principle of law that no litigant should made to suffer for the mistake of his counsel. To this extent, the impugned order so far as it rejects the application under Order 16 Rule 9 CPC cannot stand the test of law, thereby compelling this Court to exercise its limited supervisory jurisdiction under Article 227 of Constitution of India.

As regards the rejection of application under Order 14 Rule 10 CPC of the defendant/petitioner, it is seen that cogent and sufficient reason have been assigned by the recording that the tenancy has been admitted by the defendant/tenant and the documents sought to be produced is that whose certified copy can be admissible, which can be obtained and produced without requiring invocation of order 13 Rule 10 CPC. Thus, the impugned order qua rejection of Order 13, Rule 10 CPC application is upheld.

Coming to the 3rd application which is under Order 8 Rule 3 of CPC, it is seen from the impugned order that the same has been partly allowed to the extent of allowing documents no. 1 to 6, but disallowing documents no. 7, 8 and 9. The reason assigned by the trial Court is that the said documents no. 7, 8 and 9 pertain to the shop, which is outside the municipal limits of Gwalior town and therefore are of no avail as regards suit for recovery of rent and eviction filed by the plaintiff qua the suit accommodation situated within municipal limits of Gwalior town. Thus, no interference in the limited supervisory jurisdiction is called for as the trial Court has rightly exercised its jurisdiction well within the parameter under Order 8 Rule 3 CPC and thus, the impugned order to that extent is upheld.

In the conspectus of the above discussion, the present writ petition under Article 227 of Constitution of India is partly allowed to the extent indicated below-

The application under Order 16 Rule 1(3) CPC preferred by the defendant/plaintiff herein vide P-6 dated 07.07.2014 furnishing the list of witnesses and for producing the witnesses no. 3-8 by summons is allowed, but with certain cost to compensate the plaintiff for delay and prejudice that may occasion to the plaintiff/landlord. The cost is quantified at Rs. 3,000/- (RUPEES THREE THOUSAND), which shall be paid to the plaintiff/landlord within a period of thirty days from today, failing which, the application under Order 16 Rule 1 (Annexure P-6) shall stand dismissed without further reference to the Court.

The impugned order to the extent of rejection application under Order 13 Rule 10 CPC and part rejection of application under Order 8 Rule 3 CPC, is upheld.

With the aforesaid, this petition stands disposed of sans cost.