KENNETH BRAIN CASHMORE Vs. PRINCIPAL TASHI NAMGYAL

JUDGEMENT

(1.) 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.

(2.) 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 v. Kalaskar Karimsab & Ors. : AIR 1970 SC 61, 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 v. G. Ramchander & Ors. : 1997 (5) ALT 463, where the following had been cited in approval:-

(3.) 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".