ONKAR SWARUP Vs. THAKUR BITO AM SINGH

JUDGEMENT

(1.) Petitioner and deft. 2 were partners in a firm. Petitioner sold his share to deft. 1 for Rs. 25,000.00 and deft. 1 gave him cheque on 24-4-70 for part amount, of Rs. 15,000.00 which was to be presented on re-validation of licenses. The cheque when presented was dishonoured. On 22-2-73, deft. 1 sued petitioner for injunction that he should not encash the cheque and petitioner received its summons for 20-7-73 and filed w/s on that day and 5-11-73 was fixed for replication and issues. Petitioner filed his suit for Rs. 33,750.00 on 23-4-73 and 24-5-73 was fixed for service. Service did not take place as process fee was filed very late. For adjourned date 17-7-73, only deft. 2 was served and he was absent. For the next date 28-8-73, petitioner's counsel did not give process fee and suit against him was dismissed under O. 9, R. 3, CPC. For filing w/s of deft. 2. 12-9-73 was fixed upon costs of Rs. 100.00. Deft. 2 instead of filing W/s or paying costs filed a review application. It was dismissed and the court passed decree under Order 8 Rule 10 against deft. 2. to the other case, the plaintiff instead of filing replication withdrew the suit, when the petitioner's lawyer (DRG) stated that nothing survived between parties and the suit was dismissed. Petitioner learnt of the dismissal of his suit against deft. 1 on 18-8-74 and applied for setting aside of the same on 27-8-74 under 0. 9, R. 4 CPC. Trial Court dismissed the application as barred by time, commenting that petitioner had not produced his counsel (DRG). Petitioner moved High Court where it was held that conduct of DRG, advocate was far from normal, prudent or bonafide and there is ground to suspect that fraud had been committed on the petitioner. Para 10, onwards, Judgement is : Again if the settlement of the dispute had taken place in the other suit giving rise to the revision, then the settlement ought to have been recorded in that suit and not in the suit of the respondent. The suit giving rise to the revision had been dismissed against the contesting respondent, (defendant No. 1), on the ground of failure to file the process fee and not because of any settlement. How could failure to file the process fee settle the dispute between the parties ?

(2.) In view of the statement of Mr. Gupta, the counsel for the respondent took up a very innocent attitude and stated that he wished to withdraw the suit. If the counsel for the plaintiff wanted to withdraw the suit, then the court should have allowed the suit to be withdrawn and it had no power to dismiss the suit. There is, therefore, no doubt that there is something fishy in the whole affair and there is reasonable ground to suspect that a fraud has been committed on the petitioner. The conduct of Mr. D. R. Gupta, to say the least, has not been consistent with that of an advocate of ordinary prudence. I, however, do not wish to make any observations, which will prejudice him in his defence in a complaint of fraud and collusion which is alleged to have been brought against him before the Bar Counsil.

(3.) The petitioner moved an application before the court below for setting aside the exparte order of dismissal of the suit for non-prosecution. The petitioner had stated that his counsel had played a fraud on him and had colluded with the first defendant and was liable for misconduct. The plaintiff petitioner had made his statement which has not been rebutted. The court has rejected the same on the ground that it was true that the petitioner had filed a complaint against Mr. D.R. Gupta for his negligence in not pursuing the suit, but that fact by itself would not absolve the plaintiff from producing the counsel as a witness in support of his allegations as Mr Gupta was alive and was a very important person to depose in favour of the plaintiff. By advancing this reason, the court below has legally misdirected itself on the issue raised before it. If the party is charging his counsel with fraud, negligence and collusion, naturally he could not expect the same Advocate to appear as his own witness, particularly as he had explained that proceedings for misconduct had been instituted against the Advocate with the Bar Council. This is a sufficient explanation for the non-production of the Advocate by the party and the court has erred in law in drawing an averse inference against the party for his failure to produce a hostile witness, who is alleged to be colluding with the opposite party. Under section 114 of the Evidence Act, the court is not bound to draw an adverse inference against a party for non-production of a witness and the matter rests in the discretion of the court and if the non-production is sufficiently explained, no adverse inference can be drawn (see illustration (g) under section 114 of the Evidence Act). In Srichand K. Khetwani V. State of Maharashtra AIR 1967 SC 450, the Supreme Court held that adverse inference could be drawn only if it withheld certain evidence and not merely on account of its failure to obtain certain evidence. In Bhbuan Wijay Singh V. Emperor, AIR 1933 Calcutta 600, it was held that it was absurd to expect the prosecution to call witnesses who would speak against that case and if the prosecution found that a number of those who were present would not support the prosecution case. they must make up their minds whether they were truthful witnesses or not. Reference may also be made to Stephen Senivaratne V. The King, AIR 1936 PC 289, and Habeeb Mohnmmad V. State of Hyderabad, AIR 1954 SC 51. These cases lay down the law in criminal cases. They apply with stronger force to a civil case where the matter is to be decided on probabilities and not beyond reasonable doubt. The court below erred in ignoring important circumstances of the case and drawing an adverse inference against the petitioner for failure to produce a hostile witness who was charged with collusion and fraud.