T.P. Mani vs Palanisamy and Another

K.K. Sasidharan, J.—This Civil Revision Petition is directed against the order dated 3.4.2009 in unnumbered I.A. No. of 2009 in O.S. No.

368 of 2004 on the file of the learned Judicial Magistrate, Perundurai, whereby and whereunder the Application preferred by the revision petitioner

to issue a proclamation as per Order 16, Rule 10 of the CPC requiring the District Registrar, Ariyalur to produce the sale note book of stamp

papers was rejected.

Background Facts:

The Civil Suit in O.S. No. 368 of 2004 was instituted by the first respondent against the revision petitioner and second respondent praying for a

decree of permanent injunction in respect of the suit property. The Suit was contested by the revision petitioner by filing written statement.

Subsequently the Suit was taken up for trial.

While the matters stood thus, the petitioner filed an Application to summon the District Registrar for the purpose of producing the register

maintained by the stamp vendor, who alleged to have sold stamp papers for creating Ex. A.4 in favour of the second respondent. Even though the

Trial Court allowed the Application in I.A. No. 326 of 2008 and issued summons to the District Registrar, Ariyalur, the document was not

produced and accordingly the Application was closed.

Subsequently the petitioner filed an Application invoking Order 16, Rule 10 of the CPC praying for an order to issue proclamation calling upon

the District Registrar, Ariyalur to produce the document.

In the affidavit filed in support of the Application, it was the contention of the petitioner that the document in Ex. A.4 is a forged one and the said

document was created by making use of non-judicial stamp paper, which was stated to have been purchased from a stamp vendor doing business

in Perambalur District which is about several hundred kilometres from Sullipalayam, where he is residing. It was only for the purpose of proving the

purchase of stamp papers from a vendor, who is doing business elsewhere, he summoned the document from the office of the District Registrar.

However in spite of his Application in I.A. No. 326 of 2008 and the order passed by the Trial Court to summon the document, the District

Registrar, for the reasons best known to him, failed to produce the document. Accordingly the petitioner prayed for issuance of proclamation

within the meaning of Order 16, Rule 10 of the CPC to cause production of the document.

The said Application was filed on 3.4.2009. The learned Trial Judge even without registering the Application, rejected the same as per order

dated 3.4.2009.

According to the learned Trial Judge, the petitioner has filed two Applications earlier for the purpose of summoning the document. However he

was not able to procure the document in spite of granting eighteen adjournments for the said purpose. According to the Trial Court, it was a seven

year old case and the respondents are senior citizens and as such the Application was only for the purpose of dragging the matter. Accordingly the

Application was rejected. It is the said order which is impugned in the Civil Revision Petition.

Discussion:

The petitioner originally filed an Application in I.A. No. 326 of 2008 to send for the Register regarding sale of stamp papers from the office of

the District Registrar, Ariyalur. The said Application was allowed by the Trial Judge and summons to that effect was issued to the District

Registrar. However the District Registrar failed to respond and ultimately the Application was closed. It is true that the Lower Court granted about

eighteen adjournments for the purpose of producing the document. However the petitioner was not the sole cause for the delay. The delay was

only on account of the failure of the witness to produce the document. It was only in the said circumstances, the petitioner has filed the present

Application to procure the attendance of the witness.

The CPC (hereinafter referred to as ""C.P.C."") as per Section 30 and Order 16, provides for summoning the witnesses both for giving evidence

as well as for production of documents. Section 31 of C.P.C. as well as Order 16, Rule 8 provides the manner of service on witnesses. The

procedure contemplates for service to a defendant as per Sections 27, 28 and 29 and Order 5, were made applicable for service on witnesses.

The witnesses summoned by the Court must be given sufficient time for their appearance as indicated under Order 9, Rule 16, C.P.C.

The C.P.C. has taken care of the convenience of the witnesses. Therefore, once summons was served giving reasonable time to attend the

Court either for giving evidence or for producing the documents indicated in the summons, the witness was expected to honour the direction issued

by the Court. In case, summons was only for the production of documents and if it was made out that no such document was available, the witness

has to appear in Court in person or through a duly authorised representative and the Court should be appraised of the factual position. They cannot

avoid the Court in such circumstances and to put the Court and the parties in a delicate position warranting adjournment of the matter awaiting the

witness.

The Trial Court is not powerless to meet the situation on account of the failure of the witness to appear, in spite of receipt of summons. Section

32 as well as Order 16, Rule 10 provides for the steps to be taken by the Court in such cases.

We are governed by the rule of law. The rich and poor, powerful and powerless are all equals in the eye of law and nobody is above law.

The witness, who was summoned by the Court is found to be a responsible officer of the Registration Department. Obviously, he was not

above law. It was not as if the witness was exempted from appearance before the Court of law. In case the witness was prevented from appearing

before the Court on account of justifiable reasons, he should have made alternative arrangements. It was not as if for one occasion he was absent.

Summons was issued to him time and again. The Trial Court has granted eighteen adjournments for the purpose of production of documents.

However the witness was consistently absent. The Court was not obliged to show any kind of leniency to such witnesses.

The Supreme Court in T.N. Godavarman Thirumulpad through the Amicus Curiae Vs. Ashok Khot and Another, , indicated the supremacy of

the law in the constitution of democracy and observed thus:

In our democratic polity under the Constitution based on the concept of ''rule of law'' which We have adopted and given to ourselves and which

serves as an aorta in the anatomy of our democratic system, THE LAW IS SUPREME.

Everyone, whether individually or collectively, is unquestionably under the supremacy of law. Whoever he may be, however high he is, he is

under the law. No matter how powerful he is and how rich he may be.

Disobedience of this Court''s order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation

of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic

State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the

dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme

will give way and with it will disappear the rule of law and the civilised life in the society. That is why it is imperative and invariable that Courts''

orders are to be followed and complied with.

The process contemplated u/s 32 and Order 16, Rule 10 of C.P.C. are coercive in nature. Therefore before invoking the extreme step to issue

proclamation the Court should be satisfied that evidence of the witness was material in nature. When the request was for production of documents,

the Court has to be satisfied about the necessity of such production. Courts should not be a party in harassing witnesses. Therefore responsibility is

heavy on the Court. The attempt should be to reject vexatious Applications for summoning witnesses unnecessarily and assist the bona fide litigants

in proving their case. When the Court was convinced of the evidentiary value, it has to see whether the witness has failed to appear or produce the

document without lawful excuse or intentionally avoided the service.

Sometimes there would be genuine reasons for the absence or it may be due to unforeseen circumstances. In such cases, the Court should

issue fresh summons giving sufficient time for appearance or for producing the document. Things would be different in case the witness deliberately

avoids the Court or his absence was without lawful excuse. In such circumstances, the Court would be perfectly justified in taking the extreme

measure of issuing proclamation or warrant to ensure the presence of witnesses. Whether it be an ordinary witness or an official witness, the

process of Court should be respected as otherwise the litigants would lose their faith in Courts as well as in the very justice delivery system.

The Application was rejected by the Trial Court mainly on account of the failure to produce the document earlier in spite of granting sufficient

opportunity. Admittedly the petitioner has filed an Application to summon the document. The Court was convinced that the document was material

in nature. The petitioner has taken the process for the appearance of the official with the document. However the witness has not turned up. When

the petitioner has performed his part and the witness was absent without any kind of intimation to the Trial Court and that too after receipt of

summons, it becomes the duty of the Trial Court to see that the witness appears before the Court. The petitioner can never be blamed as he has

done his level best to procure the attendance of the witness.

When the Court has taken a decision to summon the witness it should take all reasonable steps to procure the presence of such witness.

Section 32 and Order 16, Rule 10 of C.P.C. vest with the Trial Court exclusive powers to see that its orders regarding summoning witness are

enforced even by taking coercive steps.

Section 32 of C.P.C. permits the Court to enforce the attendance of a witness even by issuing warrant for his arrest. The learned Trial Judge

has arrived at a conclusion that the document sought to be produced was a substantial document of material value. It was only on a subjective

satisfaction arrived at by the Court that the production of the document was absolutely essential for an effective adjudication of the matter, the Trial

Court allowed the Application in I.A. No. 326 of 2008.

The petitioner very promptly took steps to issue the summons. The Court also granted sufficient opportunity to the witness to produce the

document. Therefore, when the Trial Court was convinced of the evidentiary value of the document, the attempt should be to get the document.

The petitioner cannot be penalised for the fault of the witness. The Court must have proceeded against the witness without a formal request to that

effect from the petitioner as it was only the order issued by the Court which was flouted by the witness.

The Application filed by the petitioner was rejected outright even before registration. The mere fact that the witness was absent for about

eighteen hearings and that the parties involved are senior citizens, are not valid reasons to reject the Application filed by a party to summon the

witness to produce documents.

Outcome:

Therefore on a careful consideration of the entire factual matrix, I am of the view that the learned Trial Judge was not justified in rejecting the

Application. Accordingly the order dated 3.4.2009 in unnumbered I.A. No. of 2009 in O.S. No. 368 of 2004 is set aside.

The learned Trial Judge is directed to register the Application and issue fresh notice to the witness calling upon him to produce the document

granting sufficient time for his appearance. In case the witness fail to produce the document even after receipt of summons, it would be open to the

Trial Court to proceed against the witness in accordance with Section 32 and Order 16, Rule 10 of C.P.C. The Civil Revision Petition is allowed

as indicated above. Consequently, the connected MP is closed. No costs.