The Rajasthan High Court has observed that trial Court is required to prima-facie ascertain the relevancy and requirement of the proposed witnesses while deciding an application for summoning of witnesses in terms of Order XVI Rule 1 and 2 of the Code of Civil Procedure.
The court however made it clear that the applicant may be called upon only to show the relevance or need of such witness(es) but he/ she cannot be asked to establish or prove such requirement; The requirement has to be determined by the Court.
Order XVI Rule (1) and (2) of the CPC in unequivocal terms provide that the court suo moto or on an application, can issue summons to a witness to appear in the court. Further, Sub-rule (2) of Rule 1 of the Order XVI enjoins upon the party desirous of getting a summon issued to a witness to state in its application the purpose for which the witness is proposed to be summoned.
Justice Dinesh Mehta, while allowing the present writ petition and quashing the trial court's order, observed,
"According to this Court, while deciding application under Order XVI Rule 1 and 2 of the Code of Civil Procedure, the trial Court is required to prima-facie ascertain the relevancy and requirement of the proposed witnesses. The applicant may be called upon to show relevance or need of such witness(es) but he/ she cannot be asked to establish or prove such requirement. The requirement has to be determined by the Court."
Essentially, respondent No.1 instituted a suit for declaring the relinquishment deed dated 28.01.2011 as null and void. During the proceedings of the suit, the defendant moved an application dated 15.11.2016, inter-alia, stating that the stamp vendor - Tulchhiram Sindhi from whom the stamps were purchased and the registering authority - Sub-Registrar, Chunavadh, who had registered the contentious document are necessary witnesses. The application sought that the two persons be summoned before the court as they refused to come to the Court for leading evidence when requested.
In their reply, the respondent-plaintiff opposed the request so made by the present petitioner. Subsequently, the trial court rejected petitioner's application, inter-alia, observing that the factum of stamp(s) having been purchased and the registration of relinquishment deed on 28.01.2011 before the Sub Registrar is not in dispute and that the applicant has not stated the relevancy and necessity of such witnesses. Now, the petitioner has preferred the present writ petition under Article 227 of the Constitution assailing the validity of the trial court's order.
The court pursued the subject application dated 15.11.2016 and observed that the petitioner had stated that the plaintiff herself had purchased the stamp from the stamp vendor - 'Tulchhiram Sindhi' and thereafter she herself had appeared before the Sub-Registrar, Chunavadh for executing and getting the relinquishment deed registered.
The court opined opined that although the application is not well worded but in view of petitioner's stand in his written statement and considering the counsel's submissions, the presence of the stamp vendor and Sub-Registrar is necessary in order to ascertain the veracity of petitioner's stand.
It was observed by the court that the trial court has not properly considered the mandate of the provisions contained in Order XVI Rule 1 and 2 of the Code and has cursorily rejected petitioner's application indicating that the applicant has failed to establish the relevancy of the testimony of these two witnesses.
Further, the court stated that the stamp vendor and the then Sub-Registrar are relevant witnesses, who would assist the Court to come to a correct conclusion.
In this regard, the court directed the trial court to issue requisite summons to stamp vendor Tulchhiram Sindhi and the then Sub-Registrar, Chunavadh, on furnishing requisite cost to be determined by the trial Court. The same should be done within 15 days of furnishing certified copy of the instant order, added the court.
Adv. S.K. Shreemali for Adv. B.S. Sandhu appeared on behalf of the petitioner while Adv. Dixit Panwar for Adv. Rakesh Matoria appeared for the respondents.
Case Title: Gurjant Singh v. Smt. Amarjeet Kaur & Anr.
Citation: 2022 LiveLaw (Raj) 203