Civil Revision No. 870 of 2012 (O&M). Case: Abnash Kaur and another Vs Surinder Singh Sandhu and others. High Court of Punjab (India)
| Case Number | Civil Revision No. 870 of 2012 (O&M) |
| Counsel | For Appellant: Mr. Ashok Goel, Adv. |
| Judges | Rajesh Bindal, J. |
| Issue | Code of Civil Procedure, 1908 - Rules 1, 16, 16A, 17, 18, 18A, 19, 1A, 26, 4, 4(1), 4(1)(a), 4(2), 4(3), 4A, 5, XXVI |
| Citation | 2012 (167) PLR 215 |
| Judgement Date | February 10, 2012 |
| Court | High Court of Punjab (India) |
Judgment:
Rajesh Bindal, J.
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Defendants No. 3 and 4 are before this court challenging the order dated 23.1.2012, passed by the learned court below, whereby the application filed by the plaintiffs-respondents No. 1 and 2 for appointment of a Commission for recording the statement of Brig. H.S. Grewal as PW, was accepted. Briefly, the facts of the case are that respondents No. 1 and 2 filed a suit for declaration with the following prayer:
Suit for declaration that the two transfer deeds dated 30.6.2010 as executed by defendants No. 1 and 2 in favour of defendants No. 3 and 4 respectively, whereby the defendants No. 1 and 2 have transferred their 1/4th share each in House No. 76, Sector 19-A, Chandigarh in favour of defendants No. 3 and 4 respectively, are null and void being violative of clause XIII of registered Sale Deed dated 9.4.1979 and have no effect on the rights of the plaintiffs, who are co-owners to the effect of 1/4th share each in house No. 76, Sector 19-A, Chandigarh with a further stipulation to receive 1/4th share each on the death of their parents i.e. defendants No. 1 and 2 and along with a Decree for joint possession along with Defendants No. 1 and 2 in respect of House No. 76, Sector 19-A, Chandigarh (RP No. 2932).
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It is in the aforesaid suit that the plaintiffs filed application for appointment of Local Commissioner for examination of Brig. H.S. Grewal as PW. The application having been allowed by the court below, the order is challenged before this court.
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Learned counsel for the petitioners submitted that in terms of the provisions of Order XVIII Rule 4 CPC, examination-in-chief of a witness has always to be on affidavit, which has to be filed in court. It is only for the purpose of cross-examination that a Commission can be appointed. In the present case, the witness has not filed his affidavit in court in his examination-in-chief, hence no Commission could be appointed for recording his statement. The order passed by the learned court below being totally in violation of the provisions of law deserves to be set aside. In support of the submissions, reliance was placed upon the judgments of Hon'ble the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(6) SCC 344; a Full Bench of Andhra Pradesh High Court in Rita Pandit v. Atul Pandit, 2005(2) RCR (Civil) 504 and a Single Bench judgment of Karnataka High Court in Drakshayini v. Gangavva and others, 2005(2) RCR (Civil) 40.
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Heard learned counsel for the petitioners and perused the paper book.
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Though there is no legal infirmity in the order passed and no prejudice as such is going to be caused to the petitioners with the order impugned, however, still considering the fact that the judgments, sought to be relied upon by learned counsel or the petitioners, are not applicable and further the view taken by Karnataka High Court in Drakshayini's case (supra) on the issue is per incurium and there being no other judgment cited, this court considers it appropriate to deal the matter in dispute in detail.
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For the purpose of appreciation of the issue raised, reference to various provisions of the Code of Civil Procedure (hereinafter described as "CPC") would be required. The same are extracted below:
Order XVI and Rules 1 and 1A.
ORDER XVI
SUMMONING AND ATTENDANCE OF WITNESS
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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 summonses 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 the 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...
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