KUMARPAL NAGARDAS SHAH Vs. SHARDABEN

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of India, petitioners No.1 and 2 original plaintiffs and petitioner No.3 witness examined on behalf of the original plaintiffs have challenged the order dated 13.05.2004 passed by the 2nd Joint Civil Judge (S.D.), Ahmedabad (Rural) below Ex.142 in Special Civil Suit No.53 of 1999 whereby the application Ex.142 preferred by the petitioner No.3 in his capacity as a witness of the original plaintiffs for production of the documents, after his examination-in-chief was over, came to be rejected.

(2.) THE brief facts giving rise to this petition can be summarized as under :

(3.) LEARNED counsel Mr.P. M. Bhatt appearing for the petitioners original plaintiffs has relied on the decision of the Supreme Court in the case of Ashok Sharma Vs. Ram Adhar Sharma, reported in (2009) 11 SCC 47, in support of his contentions that the Civil Judge ought to have allowed the application Ex.142 keeping in mind Order-16, Rule1-A of the Civil Procedure Code. I am afraid this ruling of the Supreme Court, would not be of any help to the petitioners as the issue involved in this case is all together different. In the case before the Supreme Court, the trial Court refused the prayer of production of the documents on a simple interpretation of the word production as used in Order 16 Rule 1 of the Code which, according to the trial court, would mean that the witness can be summoned to bring the record to prove the documents placed on record by the parties to the suit. In the case before the Supreme Court, the document was not produced by the plaintiffs either along with the plaint or at the time of framing of the issues. The High Court permitted the document to be taken on record at the instance of the witnesses. In these facts Supreme Court held that Order 16 Rules 1 and 1-A of the Code, if read together, would clearly indicate that it is open to a party to summon a witness to the court or even may, without applying for summons, bring a witness to give evidence or to produce documents. The Supreme Court clarified that since Rule 1-A is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness, who might have been brought by a party for the purpose, the leave of the court may be necessary.