Ganga Ram vs Beli Ram

V.K. Mehrotra, J.—Appellant Gauga Ram instituted suit No. 309 of 1983 for declaration and permanent injunction in respect of certain land situates in village Beru Tappa Balduhak, Tehsil and District Hamirpur. The suit was dismissed by the learned Sub Judge 1st Class (II), Hamirpur on October 19, 1985. Ganga Ram assailed the decree by filing civil appeal No. 181 of 1985 on December 12, 1985.

During the pendency of the appeal the Defendant-Respondent Beli Ram died on "December 12, 1986. Though the Respondent was represented by a counsel, no information was given to the Court about it as required by Order 22 Rule 10 A Code of Civil Procedure.

It was on September 28, 1988, that the learned Counsel for the Defendant-Respondent informed the Court about the death of the Respondent. The appeal was posted for hearing on that date before the learned District Judge. A prayer was made on behalf of the Appellant for time to bring the legal representatives of the Defendant-Respondent on record. The case was directed to come up on November 15, 1988.

On that date the Court directed issue of notice to the proposed legal representatives of the deceased on an application under Order 22 Rule 4 CPC which had been made on behalf of the Appellant. On December 22, 1988, as is evident from the order sheet of the lower appellate court, the case was directed to come up for reply and consideration on January 11, 1989.

On that day the consideration of the application was deferred to February 9, 1989.

Since there was delay in the presentation of the application for substitution and an objection to that effect had been taken on behalf of the proposed heirs of the Defendant-Respondent, the learned District Judge framed relevant issues for consideration on Feb. 9, 1989, when the case came up before him. The first two issues were:

Whether there is sufficient cause to condone the delay in filing this application for bringing on record legal representatives of deceased-Respondent Beli Ram? OPA

Whether the appeal has not abated? OPA

March 27, 1989, was fixed as the date for evidence on behalf of the Plaintiff-Appellant.

On March 27, 1989, the Appellant''s witnesses were present but the Presiding Officer was on leave. The case was directed to come up on March 31, 1989, on which date it was adjourned to May 8, 1989, for the Appellant''s evidence. In respect of another witness, namely, a Doctor, it is recorded on the margin of the order sheet that the summons had been received unnerved for want of adequate diet money. Process-fee was directed to be filed within two days.

When the case was taken up on May 8, 1989 the order that the Learned District Judge passed neither was that neither the Appellant was present nor were his witnesses. The summonses which had been issued to the doctor had been received unnerved because of less diet money having been deposited.

The Learned District Judge then observed in his order that

...In the circumstances no further adjournment for Appellant''s evidence is justified and I close the Appellant''s evidence. Since onus of both the issues framed on 9-2-1989 was on the Appellant, for want of evidence both the issues stand decided against the Appellant the appeal stands dismissed as having abated.

The above order of May 8, 1989, has been assailed by the Plaintiff-Appellant in the present Regular Second Appeal.

On July 13, 1989, this Court directed notice, pending admission, to issue to the proposed legal representatives of deceased Beli Ram.

Shri R.K. Sharma has appeared on behalf of the proposed heirs. On December 19, 1989 a prayer was made before the Court that the record of the courts below be summoned so that the appeal may be disposed of finally at this stage itself, if possible.

After hearing learned Counsel for the parties I am of opinion that the appeal deserves to be allowed and the matter sent back to the lower appellate court for decision in. accordance with law. From the narration of facts, as aforesaid, it is obvious that the learned District Judge committed an error in disposing of the appeal finally as having abated in the circumstances of the present case. It was on March 31, 1989, that he had fixed May 8, 1989, as the dare for recording the evidence on behalf of the Plaintiff Appellant on the issues framed by him on February 9, 1989. When the matter came up before him on May 8,1989 the Learned District Judge proceeded to dismiss the appeal as having abated on the ground that the Appellant or his other evidence was not present and the summons issued to the doctor had been received unnerved for want of less diet money being deposited.

Normally, it is a matter of discretion with a court to pass appropriate order contemplated by Rules 3 and 4 of Order 16 Code of Civil Procedure. Such an order would, usually, not be interfered with by this Court in an appeal of the present nature. However, intendment of law is clear that the court should exercise discretion contemplated by Sub-rules (1) and (2) of Rule 4 of Order 16 CPC on judicially acceptable considerations, having regard to the conduct of the party, required to summon the witnesses, before the dare on which the order adverse to the party is passed.

Order 16, dealing with summons for attendance of witnesses, come plates payment of expense of witnesses into court on applying for summons. The sum paid into court is to be tendered to the person summoned, at the time of serving summons, which can be served personally as is envisaged by Rule 3. Where the sum paid by a party into court (or summoning a witness is not sufficient, the procedure to be followed is contemplated by Rule 4 of Order 16 which runs thus:

Procedure where insufficient sum paid in.-(1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons: or the Court may discharge the person summoned without requiring him to give evidence, or may both, order such levy and discharge such person as aforesaid.

(2) Expenses of witnesses detained more than one day.- Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence, or may both, order such levy and discharge such person as aforesaid.

A reading of the above provision show that it is implicit in this provision that normally an opportunity should be given to the party for making good the deficiency before visiting him with an order resulting in the dismissal of his cause. Rule 4, which is a Rule of procedure, is expected to be so applied as to sub serve the cause of justice. It is not expected to be applied in a manner which may result in. manifest injustice.

In the present case, as is evident from the order sheet of the Court of the Learned District Judge, the court proceeded to close the evidence on behalf of the Plaintiff-Appellant, on the question, of the condensation of delay in the presentation of the application under Order 22 Rule 4 CPC and the question whether the appeal was to be held to have abated for failure of the Plaintiff Appellant to bring the legal representatives of the deceased Defendant-Respondent on the record within time, almost abruptly without following the procedure envisaged by Rule 4 of Order 16 CPC in its spirit.

The order dated May 8, 1989 deserves to be and is set-aside. The appeal shall be restored by the Learned District Judge to its original number and the two issues framed in the case on February 9, 1989, shall be determined afresh, in accordance with law, after adequate opportunity to the parties to summon there witnesses.

The present appeal shall stand allowed to the aforesaid extent. Parties are, however, left to bear their own costs of this Court.

The record shall be sent forthwith to the Court of the Learned District Judge, Hamirpur, so as to be available to the Court on April 30, 1990, when the parties shall appear before the Learned Judge for further directions.