SOHAN SINGH AND CO Vs. MOHAMMAD AISHAK TYAGI

JUDGEMENT

(1.) Mohammad Aishak Tyagi has filed a suit in the Court of the Senior Subordinate Judge, Bilaspur, for recovery of Rs. 13,390/- against M/s. Sohan Singh & Co. Government Contractors, and the allegation is. that the plaintiff is entitled to that amount on account of labour charges because the defendant engaged him to procure labour in connection with his contract for the construction of Court buildings at Bilaspur. The defendant put forward preliminary objections that the plaintiff had no locus standi to file the suit because the defendant was liable to pay the labour charges direct to the labourers and the plaintiff had nothing to do with such payment and that the plaintiff himself had filed an application before the Labour Inspector and the proceedings being pending there, could not be agitated by filing a regular suit in Civil Court. On these two legal pleas which were preliminary in nature, the learned Senior Subordinate Judge framed two specific issues: one on the locus standi of the plaintiff and another on the jurisdiction of the Court. Under Order 14. Rule 2, Civil P. C.. it was open to the learned Senior Subordinate Judge to decide these issues at first, because they materially affected the rights between the parties. Accordingly he called upon the defendant to produce evidence in support of these two preliminary issues and the defendant wanted to examine the Accountant of the P. W. D. who was asked to bring the original contract and also the Labour Inspector before whom the application was pending. The Labour Inspector was also asked to bring the particular application submitted by the plaintiff. These two witnesses were duly served, which is clear from the order of the learned Senior Subordinate Judge. On 23rd October, 1970 which was fixed for the recording of evidence upon the two preliminary issues, the counsel for the parties were present, but the defendant himself was absent and he moved an application for adjournment because his witnesses despite service were not available. The defendant also produced a medical certificate and the learned counsel on his behalf pressed for ad-! journment on these grounds.

(2.) The learned Senior Subordinate Judge instead of adjourning the case or assisting the defendant in procuring the attendance of witnesses, made an order, signifying that the witnesses, were not present and that the defendant himself was absent. He further observed that the defendant did not appear interested in producing evidence on the preliminary issues, that he was already given "numerous opportunities", and that the case was much delayed. As such "justice and equity" demanded that the evidence of the defendant should be closed on the preliminary issues, and further observed that the burden of proof lay upon the defendant which he failed to discharge and so the two preliminary issues as well as two other issues which correlated to such legal objections, all the four issues, were decided against the defendant. In other words, it was held that the Court had jurisdiction to try the suit and that the plaintiff had locus standi to institute the suit. This order was made on 23rd October, 1970. The defendant has felt aggrieved of the order and has come up in revision.

(3.) It is abundantly clear that the witnesses summoned by the defendant were necessary witnesses. They were required to produce documents and unless such documents were before the Court, the statement of the defendant could not be recorded. If the defendant had taken all necessary steps for the summoning of these two witnesses and they were also duly served as observed by the learned Senior Subordinate Judge, where was a default committed by the defendant. He had done whatever law enjoined him to do and, in fact, a duty lay upon the Court to assist him in procuring the attendance of his witnesses. The Court should have proceeded under Order 16, Rules 10 to 16. The witnesses who were already served could be proceeded against and their attendance enforced so that the evidence could be recorded. Instead of doing that, the learned Senior Subordinate Judge closed the evidence of the defendant on the four preliminary Issues and thereby decided a Dart of the case against him. It was not within the power of the defendant to have procured the attendance of witnesses who were Government Officers. In the circumstances, it was incumbent upon the Court to have adjourned the case and to have assisted the defendant under Order 16 to procure attendance of witnesses. This the Court has not done and it has obviously failed to exercise a jurisdiction vested in it under law,