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Judgment
Wangdi, J.—This Revision Petition is directed against the order dated 07.05.2011 (hereinafter referred to as the impugned order) passed by the learned District Judge, East and North Sikkim at Gangtok, in Title Suit No. 5 of 2008, by which an application filed under Order XVI Rule 14 C.P.C. on behalf of the petitioner was rejected. Mr. Tashi Norbu Basi, learned Counsel appearing on behalf of the petitioner, submits that the petitioner is aggrieved by the impugned order on the ground that the learned Trial Court failed to exercise its jurisdiction vested in it by law. It is further his submission that Order XVI Rule 14 CPC no doubt vests upon the Court suo moto power to be exercised by it free from any pressure or at the instance of any party to the suit, but at the same time, the provision does not bar a party to bring to the notice of the Court the necessity for examining any person as a court witness and for the court to invoke its suo moto power. Mr. Basi has referred to the judgment of the Hon''ble Supreme Court in the case of Shaik Mohammed Umar Saheb Vs. Kaleskar Hasham Karimsab and Others, , whereby it has been held that the powers of the Courts are of wide amplitude. He has also referred to a Single Bench judgment of the Andhra Pradesh High Court in G. Balaiah Vs. G. Ramchander and Others, , where the following had been cited in approval :
In P.S. Chetty v. K.E. Reddy, 1988 (1) ALT 279 this High Court observed that:
... This power obviously intended in the interests of justice is aimed at clarifying certain situations and remove ambiguities and fill up lacuna and thereby further justice. The parties may refrain from summoning a crucial witness in the event of their apprehension of full fledged support and in such a situation the Court may summon such person to give evidence to arrive at the correct factual picture and this witness is called a ''Court witness''. Order 16 Rule 14 visualises the initiative by the Court only to examine any person and it is for the Court to consider of its own accord the necessity of invoking power under this rule without propulsion or application by the parties. The exercise of this power is in the nature of "self-starter" without extraneous pressure or pull.
It is further observed that:
... It is true that the Court is not obligated to invoke the power at the instance of the parties and the parties have no right to move an application under this rule. But however either of the parties can bring to the notice of the Court the necessity for examining any person as Court witness. On such application the Court may scan the totality of facts and circumstances apart from the situations projected by the parties and arrive at an independent conclusion as to the necessity of a Court witness. The parties are not totally barred from bringing to the notice of the Court by application or otherwise and the Court is not bound to take action on the averments or allegations contained in the application and it is the sole discretion of the Court. The application by the parties may be considered as passing on the information so that the Court may examine the issue in depth on the facts and circumstances set out in the application and other aspects.
It is finally observed that:
... There is no bar for such application and the move by the parties may be considered as bringing to the notice of the Court and thereupon it is for the Court to invoke power under Order 16 Rule 14 CPC.
Mr. Basi submits that the trial Court while passing the impugned order has failed to apply his mind and consider the question as to whether it was necessary for the Court to exercise its jurisdiction under Order XVI Rule 14 in the light of the grounds set out in the application, and, therefore, for this reason alone the impugned order deserves to be set aside.
On the other hand, Mr. Karma Thinlay Namgyal, learned Counsel appearing on behalf of the respondent, submits that the application was rightly rejected by the learned trial Court as it can be easily made out from the impugned order that the Court had duly considered the aspect pointed out by Mr. Basi, when it has clearly been set out that "Under this provision summons should be issued by the Court only if the Court had at any time thinks it necessary to examine any person and not called as a witness by a party to the suit".
It is also his submission that earlier a similar application filed under Order XVI on 26.02.2009 had been rejected by the Court by an order dated 10.02.2010 which stood unchallenged and, therefore, had assumed its finality. It was, therefore, not permissible for the petitioner to bring the present application which is on the very grounds as the one that was rejected.
Upon due consideration of the rival contentions of the learned Counsels, I am of the view that this Revision Petition deserves to be allowed. Order XVI Rule 1 and Order XVI Rule 14 CPC have different scope and amplitude. Order XVI Rule 1 deals with a situation where parties are enjoined to file the list of witnesses on or before such date as the Court may appoint and not later than 15 days after the date on which the issues have been settled. Rule 14 of Order XVI is a power vested in the Court to act suo moto in summoning any person as a witness to give evidence, if at any time it thinks it necessary to examine such person as a witness.
The application that stood rejected on 10.02.2010 is neither is to be considered as an application filed under Order XVI Rule 1 (1) nor under Order XVI Rule 14. It is rather quite obvious that it was one under Order XVI Rule 1 (2) CPC. For better appreciation of these provisions, we may reproduce them as under:
Order XVI
[1. 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 subrule (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 the list of witnesses under sub-rule (1)}.]
...
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 witness by a party to the suit, the Court may, if 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.
This would set at rest the confusion as far as the scope and ambit of the provisions of Order XVI Rule 1 and Order XVI Rule 14 are concerned and also as to the provision under which the earlier application was filed.
It is an admitted position of the parties and which, also appears to be apparent from the order dated 10.02.2010, that the application which was rejected by that order did not contain the grounds set out in the application which was rejected by the impugned order dated 07.05.2011. By that petition, the petitioner rather appears to have been endeavouring to impress upon the Court the necessity of issuing summonses upon the witnesses named in the application, which is a situation contemplated under Order XVI Rule 1(2) CPC.
There can be no manner of doubt that powers under Order XVI Rule 14 CPC can be exercised by the Court at any time if it thinks necessary to examine a person as a witness. The only question for determination by this Court is that whether it would be permissible for a party in a suit to invoke such powers and as to whether it would be permissible for the Court to act at the behest of any party to a suit. The legal position in this regard appears to be well settled in the decisions cited at the bar by Mr. Tashi Norbu Basi, learned Advocate for the petitioner, which have been dealt with above and I am persuaded to accept the ratio propounded in the case of G. Baliah vs. G. Ramchander & Ors. (supra) by the Andhra Pradesh High Court.
In the light of this legal position, when we examine the impugned order, it becomes quite manifest that the learned trial Court has rejected the application by the impugned order on the erroneous interpretation that under Order XVI Rule 14 CPC, the Court may summon and examine a witness only if the Court thinks it necessary to do so, presuming a complete bar in the parties seeking to invoke such power. This is quite obvious from the cryptic and rather vague reasoning that "Under this provision summonses should be issued by the Court only if the Court had at any time thinks it necessary to examine any person and not called as a witness by a party to the suit". The learned trial Court quite apparently has not at all considered the application in its merits and has failed to exercise its discretion contemplated under the provision. On a perusal of the impugned order, I do not find anything to indicate that the learned Trial Court had duly considered the aspect of its necessity to exercise the jurisdiction under Order XVI Rule 14.
In the above circumstances, I am inclined to allow the Revision Petition and remand the case back to the learned trial Court to consider afresh the limited question as to whether, in its opinion on the facts and circumstances of the case, it is necessary for examining any person or persons indicated on behalf of the petitioner in the application, as a Court witness. It is, however, made clear that the entire exercise shall be completed within one month in order to avoid further delay in disposal of the Title Suit.
In the result the Revision Petition is allowed.
No order as to costs.
Let a copy of this Order be transmitted to the learned Trial Court for compliance. Records of the learned trial Court be returned forthwith.