Saturday, 28 September 2019

Whether defendant can compel plaintiff to enter into witness box to give evidence?

Order XII, Rule 2 of the Code enables the party to call upon other party to admit, within seven days from the date of service of notice, any document and it further provides that in case the other party refuses or neglects to admit the documents after service of such notice, the party giving notice to produce documents can take further steps and in such situation party which refuses or neglects to produce the documents will have to pay the costs of proving those documents. This provision does not enable the defendant to compel the plaintiff to enter the witness box to give evidence. It only entitles the party giving notice to admit documents to recover the costs incurred by it for proving the documents, irrespective of the result of the civil suit.

6. Order XVI, Rule 1 of sub-rule (2) of the Code provides for the procedure which is required to be followed by a party who desires to obtain any summons from the Court for the attendance of any person. Again this provision does not deal with right of the defendant to compel the plaintiff to enter the witness box to give evidence.

7. Though the submission made on behalf of the petitioner/defendant that examination of Madhusudan is necessary to prove the document which the defendant has produced on record appears to be correct at the first blush, in the absence of any such provision and considering the fact that the defendant and plaintiff No. 1 (Madhusudan) are contesting parties, the prayer made on behalf of the defendant cannot be accepted. The defendant has other options available as per law to prove the documents.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1772 of 2016

Decided On: 27.11.2018

Ramchandra Krushnaji Dhale Vs.  Madhusudan Jhunjhunwala and Ors.

Hon'ble Judges/Coram:
Z.A. Haq, J.

Citation: 2019(3) MHLJ 532

1. Heard.

2. In the civil suit filed by the respondents (plaintiffs) praying for decree for possession and damages, after examination of the witnesses on behalf of the plaintiffs and after the evidence of the defendant (respondent) is recorded, issues are recasted and following issues are added:

"1) Do plaintiffs prove that they had given suit room as gratuitous License to the defendant?

2) Does the defendant prove he is statutory tenant protected under the law?

3) Whether defendant prove that he was employee of the defendant No. 2 trust and rent of suit premises was being deducted from his wages every month by the plaintiff No. 2 without issuing any receipt towards acknowledgment of rent?

4) Whether defendant prove that due to dispute regarding payment of wages/salary as per Minimum Wages Act and applicability of Labour Laws against plaintiff this suit has been instituted by the plaintiff.

5) Do plaintiff prove that, they are entitled for ejection & vacant possession of the suit property?

6) What order, decree and mesne profit?"

3. In view of Issue No. 3 and Issue No. 4 (as recasted) the defendant filed application (Exh. 197) seeking permission to examine Shri Madhusudan Shivchandray Jhunjhunwala (plaintiff No. 1) as his witness. This application is dismissed by the impugned order.

4. The contention of the petitioners/defendants is that after recasting of the issues, the defendant has produced certain documents on record which are countersigned by Madhusudan in his capacity as trustee of the public trust and those documents will have to be proved through evidence of Shri Madhusudan. According to the defendants, the scribe of those documents is dead and therefore, examination of Shri Madhusudan to prove the documents in question is necessary. The defendant relies on the provisions of Order XII, Rule 2 and Order XVI, Rule 1(2) of the Code of Civil Procedure.

5. Order XII, Rule 2 of the Code enables the party to call upon other party to admit, within seven days from the date of service of notice, any document and it further provides that in case the other party refuses or neglects to admit the documents after service of such notice, the party giving notice to produce documents can take further steps and in such situation party which refuses or neglects to produce the documents will have to pay the costs of proving those documents. This provision does not enable the defendant to compel the plaintiff to enter the witness box to give evidence. It only entitles the party giving notice to admit documents to recover the costs incurred by it for proving the documents, irrespective of the result of the civil suit.

6. Order XVI, Rule 1 of sub-rule (2) of the Code provides for the procedure which is required to be followed by a party who desires to obtain any summons from the Court for the attendance of any person. Again this provision does not deal with right of the defendant to compel the plaintiff to enter the witness box to give evidence.

7. Though the submission made on behalf of the petitioner/defendant that examination of Madhusudan is necessary to prove the document which the defendant has produced on record appears to be correct at the first blush, in the absence of any such provision and considering the fact that the defendant and plaintiff No. 1 (Madhusudan) are contesting parties, the prayer made on behalf of the defendant cannot be accepted. The defendant has other options available as per law to prove the documents.

8. In view of the above, the petition is dismissed.

No costs.


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