8^Wi :•:•'.^ ••'./;(. ;!/"'T IN THE mGH COUE'I'OF BJDICATURE AT BILASPUR CHHATTISGARH W.P.NO. ^LI<^ IWS EETTEIONER RESPONDENT 1] 21 3] HabeebBhaiS/o.SamiullaSiddhique,Aged about 4S^ years, R/o. Palaee Road, Ju.Dapara, Balkurithpuj,PS. &TaMsilBaikunt:hpur,Distt. Suigttja (C.G.) • VERSUS ( K.K. ChaudhaiR (KrishnaKumar Chau'dhari) S/o. NandraiK Caiaudhari, Aged about 52 years, Qccupatt^n- .Forest contradtor, R/o. Maneridragarh] KiOtUl, Nagai- -Ambifcapur, P.S. &TahsflAfl:tMl^uB,Di^ WRTTPEl'MiN®YF5ERARI3(2iyBa^ : .^.,cc)8s[sti' a »'.is<aaEaBiEiiA:' /. PARTICUt.AISQE!TOSFETIT'IG)]?ffiBi:(S): As stated aboyeinttie<eausetifle. ^ pAS'TICHLAfiS<3FiTHiERESPONtiB! As statedabbveuftMecatlsetttle. w PAKIICia.S^ C^ 1EHE X3BD@Rif^aiGJ^^ST IWS [C ^3sai AB .; )FTHE ^- I~-^$illl5 1>.^--£^'":;^::;:--;-1: 1 «Si ^ .37 Pstitioner/ Dsfendant X Respondent/ Plaintiff HIGH CQURT OF CHHATTISGARH : BILASPUR Writpetition No.449 of 2005 HabeebBhai "' Vs. -.^ ' > v: • K.K.Ch&dhari y, Petitioner/Defendant by Shri IVIanoj Paranjpe, Advocate. Respondent/PlaintifF byShri A.K.Prasad,AdVocate. | ORDER (Passed 0 S/11/05) The petitioner by the instant petition is challenging the order dated dated 10.01.2005 passedby the District Judge, Ambikapur in Civil Suit No. 5- B/2003 and by wtiich the learned District Judge exercising powers un.der Order 16 Rute 14 read with Sectiori 151 ofthe Code of Civil Procedure (for brevity 'the Code') has summoned two witnesses for evidence on the date when the matter was fixed for delivery ofthe judgment.(Parties hereinafter shall fc(e referrsd to as pertheir descripfion beforethe trialCourt.) 2. The case of She defendant is thaf the plaintiff filed a civil suit for recovery of Rs.1,03,539/-, bejng payment towards value ofthe centering plate and timber purchased by him on credit, along with the interest. The defendant denied the averment in the plaint and further denied the transaction in the plaint. 3. On the basis of the pleadings ofthe respective parties, issues were framed.On 27.08.2004 the plaintiffexamined himselfin suppprtof tiis case and closed his evidence. The case was fixed for defendant's evidence. The defendant was examined and cross-examined on 08.12.2004 antfclosed his case. The matter was fixed for arguments and in the meanwhile, the plaintiff filed documehts as per list along with an applicatton under Order 8 Rule 1(a)(3) ofthe'Code on 20.12.2004, whichi was rejected on 23.12.2004 andttie matter was fixedforfinal argument oni 27.12.2004. However, the matter was.adjourned for final argument on| 03.01.2005 and the parties were present on that date and the matterwas' !!fiil fixed for judgment on 10.01.2005. However, instead of delivering the judgment, thelearned trial Court bythe impugnedorder directed issuance of summons to Forest Range Officer, Ambikapur and truck driver-Malket Singh for their examination as a witness. The Forest Range Officer was also directed to come along with Transit Permit Book No. 028 dated 11.05.2000 andBookNo. 1814 dated;.2Q,06.2000. >.• . - . ' ' : 4. Learned counsel for ths defenc^ant submits that from perusal ofthe plaint it would be evident that the plaintiff^has nowhere pleaded in his plaint or has tnentioned the same in his examination-in-chiefwhich was recorded on affidavitthatthedocuments of Ex.P/2 ahd P/3 contains the signature of driver-Malket Singh. He had also not pleaded the fact regarding issuance of Transit Pass by the Forest Department and this fact came for the first time in paragraphs 2 and 3 of his cross-examinatiQn. Learned counsel further submitsthat though the Courts have discretion under Order 16 Rule 14 ofthe Code to summon as witnesses strangers to the suit and examinethem as a witnessor require them to produce a document but such discretion shpuld be exercised tp further the jnterest of justice and the same'Cannot be usedtofill up the .lacuna of either party. Hefurther submits that it was notthe cas& of'the plaintiffin his pfeading that the driver-Milket Singh signed Ex.P/2 and P/3 and that the Transit Permit was issued by the Forest Range Officer wjth rsspect to the goods sold to the defendant and the ptaintiff has stated this for the first time:in the Court that too in his cross examination.. S. Relying upori the judgment repoi-ted in 1982 W.N. ShortNote 60 in the matter of Badrivishal Vs. Shavamlal it is submitted that when the plaintiff himself did not summon the.witness, the Court was not justified to summon such witness as a Court witness. Further relyirig upon the judgment delivered in the matter ofManaklal Vs.NandIal reportsd in ~2000(ltl M.W.N.152 it is submitted thatthe purpose ofSection 151 ofthe Code is to' safeguard the interest of justice but the Court should not be interested in calling the witness whom the litigant stiould have examined when he had the opportunityto;do so. The power should beexercised for the purposes offinding the trttth which is necessaryforadjudicatiOnQfthe ^HI suit or procsedings and it should not be used in such a fashion that the aeiversar^' makes a grievance ofdiscrimination. However, learned counse! for the defendant also r'elies upon the judgment reported in AiR 1871 S.C. 194S (V S8 C 4S21 in A'le matter of E Rai Vs. Saehhidanand Sinsh and argues that where neither side has summoned a material wtness to give evidence, the Court is justifisd !n refusing to call such witness as a Court witness after the closure of evidence. •'•., Further p'acing his reiiancs on the judgment reported in 1988 lifl.P.L.J. S40 delivered in the matter of Uniion C-arbide Csrooration Vs. Union of india, it is submitted by learned counsel for the defendant that though the ambiS of povwr under Sectien 151 of the Code is wide but the same relates to the procedure to be foilowed by the Court in dsckling the cause bsfore It but they cannot be used over the substantive rsaht •inrfilch a Istifiant Dossesses and the same should not bs exercised with resDect to the matters affecting the substantive right of any party and such result cannot be oerrnitted to achieve indirectlv under the garb of Court taklng recourse to any so-calied innovaSion. On the other hand, learned counsel for the plaintiff submits ihat bare reading of Order 16 Rule 14 of the Code aoes to show that the Courts have unfettered povi/er under Order 16 Rule 14 of the Code to sunimon any witness even stranger to be examined as a vv'itness and to dlrect production of any document If the Court in its w'sdon'i is of the opinion that to arrive to the truth such exercise of power is necessary. In the instant case though the plaintiff/rsspondent has not pleaded the materiai particulars regarding forest transit permit or regarding signature of the driver-Milket Singh in the recelpt of documents Ex.P/2 and P;3 but the siaintiff in his Court statement has stated the same and therefore, the C&urt be!ow was justified So ca!l the above wtnesses and the documents to reach to the truth. Thus in the above circumstances, the exereise of such discretion cannot be interfered with 'A+iiie exercising power under Article 226/227 ofthe Constitution oflndia. 'nave heard leamed counsei forthe parties. In the liflht of the sudciments cited bv iearned counsel for the defenda the impugned order cannot be sustained forthe followng reasons; (a) that there was no pleading by the plaintiff regardins the sianature of driver-IViilket Singh on the receiDts of Ex.P/2 & P/3 and the plaintiff has also not mentioned the same in his examlnation-in-chief on oafh, (bi ;e after < iinn himseif as a witness and at no point of time prayed for calling other ciocument or witness-Milket Singh. (C} (d> The. Cc not abie In the !i( the learned District Judge vide order dated 23.12.2004 rejected the application of the piaintiff under Order 8 Rule 1 (a)(3) of the Code, vAh an obser/ation that the defendant has been cross- examined at iength with respect to the iransit permit and therefore, at the stage of final hearing, documents filed by the plaintiff are not admissibie under Os-der 8 Rule 1 (a)(3) ofths Code. that the power available under Order 16 Ruis 14 of the Code cannot be used to further ths interest of a pa.Uy and that too at the fag enci of the proceedings whsn the matter is fixed forjudgment. rts are expecied to conduct in such a manner Shat the parties are to make grievance that they are being discriminated. ofths aforesaid discussions, the instant petition is allovs'ed and the impugned order dated 10.01.2005 passed by fhe District Judge, Amblkapur is hereby set aside. Sd/- Dhirendra Mishra Judge V3