D Srinivasa Rao, Secunderabad vs K Raghava Venkata Ramana, ...
2023 Latest Caselaw 4960 AP

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       THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                C.R.P.Nos.4955 and 5134 of 2015

COMMON ORDER:

      The Revision Petition No.4955 of 2015, under Article 227 of

the Constitution of India, is preferred against the order, dated

01.09.2015, in I.A.No.1031 of 2015 in O.S.No.476 of 2012 on the

file of the Court of the Principal Senior Civil Judge, Eluru, (in short

'the court below') filed under Order 16, Rule 1 and Section 151 of

C.P.C seeking to issue notice to one Mr.Narasimha Murthy, who is

an Ex-Serviceman.


      The Revision Petition No.5134 of 2015, under Article 227 of

the Constitution of India, is preferred against the order, dated

01.09.2015, in I.A.No.1030 of 2015 in O.S.No.460 of 2012 on the

file of the Court of the Principal Senior Civil Judge, Eluru, (in short

'the court below') filed under Order 16, Rule 1 and Section 151 of

C.P.C seeking to issue notice to one Mr.Narasimha Murthy, who is

an Ex-Serviceman.


      2. The petitioner herein is the defendant; respondent herein

is the plaintiff before the court below. Petitioner is common;

whereas defendant is different in both the suits and also these

revision petitions. Both the impugned applications have been filed

to issue notice to one Mr. Narasimha Murthy, who is an Ex-

Serviceman, contending that the petitioner herein never borrowed

any amount from the plaintiff i.e respondent herein and never

executed any promissory note in their favour. But there was

financial transactions with one Narasimha Murthy, Ex-

Serviceman, resident of Kakinada, who obtained signatures on the

blank promissory notes and other papers. The respondent has

fabricated the promissory notes, therefore the evidence of Mr.

Narasimha Murthy is essential to substantiate the case of the

petitioner herein.

3. The respondent herein filed counter denying all material

allegations and mainly contended that respondent/ plaintiff had

some financial transactions with Mr. Narasimha Murthy. Non-

mentioning of surname, father's name and his address of Mr.

Narasimha Murthy is only to drag on the proceedings and he is no

way concerned to these suits. If really the petitioner discharged his

debt to the said Mr. Narasimha Murthy, he would have given legal

notice prior to filing of the suit demanding to return the original

promissory notes and other papers. Therefore question of giving

summons to an unidentified person does not arise. There is no

proof to show that there is financial transaction between the

respondent and the alleged Mr. Narasimha Murty. Therefore the

application is liable to be dismissed.

4. After hearing on both sides, the court below dismissed the

application on the ground that the petitioner has not furnished the

address particulars of said Mr. Narasimha Murthy. Therefore it

seems that the petitioner filed these applications only to drag on

the proceedings.

5. Since the facts and issue involved in both the Civil

Revision Petitions are one and the same, I find it expedient to

decide these matters by a Common Order.

6. Heard Sri S. Sridhar, learned counsel for the petitioner

and Mr. P. Anudeep Reddy, learned for the respondent.

7. During hearing learned counsel for the petitioner would

mainly contend that the court below erred in dismissing the

applications on the ground that no documentary evidence is filed

to show that there was any transaction between the petitioner and

said Mr. Narasimha Murthy and ought to have seen that the

contention of the petitioner that there was transaction between

them and by summoning the witness true facts would come before

the court which would help in adjudication of the matter and

ought to have allowed the same. It is further contended that he

borrowed amounts from said Mr. Narasimha Murthy and the

promissory notes were issued in his favour and that the

respondents have forged and fabricated the same and got filed the

suit in the name of plaintiffs. Therefore the orders impugned

passed by the court below is based on mere surmises and not in

accordance with law. Therefore the revisions are liable to be

allowed.

8. Whereas learned counsel for the respondent vehemently

opposed to allow the revisions, as the court below rightly

discussed the facts and circumstances in its order and there is no

irregularity or impropriety therein. The petitioner has not

furnished correct details and address of the said Mr. Narasimha

Murthy, who is no way connected to the suits; hence his evidence

is way helpful to the petitioner. Hence the court below rightly

dismissed the applications.

9. Perused the record.

10. A memo dated 18.08.2015 has been filed by the

petitioner/ defendant mentioned the detailed address of said

Pidaka Narasimha Murthy, residing at Kakinada. It is also noted in

the impugned order that "Though the learned counsel for the

respondent argued that the petitioner has not furnished the address

particulars of said Narasimha Murthy, the petitioner had furnished

the address particulars before the court". Therefore, it is evident on

the face of the record that the petitioner has furnished the address

particulars of the said Mr. Narasimha Murthy. But the court below

held that there are no tenable grounds in the petition and the

petition has been filed to drag on the proceedings. Therefore the

court below has dismissed the applications.

11. Learned counsel for the petitioner placed on record the

decision of the erstwhile High Court of Andhra Pradesh in "M.

Dhananjaiah Goud v. Mogudampally Chandraiah and

Others"1 wherein the learned Single Judge held as follows:

"8. A learned single Judge of this Court in G.K. Murthy v. B.R. Rao, AIR 1973 Andhra Pradesh 309 held that under Order 16, Rule 1 , the Court cannot refuse to issue summons on technical grounds. While considering various judgments, the learned single Judge has summed up with regard to Order 16, Rule 1 of C.P.C. as under

"9. A reading of the above authorities leads me to lay down the following propositions.

1. Under Order 16, Rule 1 , Civil Procedure Code, it is the right of the party at any stage of the suit to make an application to the court seeking that summons be issued to a witness either to give evidence or to produce documents.

2. The Court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit.

3. If the summons is not served by the adjourned date of the suit the party who filed the application to issue the summons would take the risk.

4. If an application for adjournment is made at the instance of the party who applied under Order 16, Rule 1, Civil Procedure Code it is for the court to consider whether or not an adjournment should be granted.

5. The Court may not refuse to order an application under Order 16, Rule 1 , Civil Procedure Code on the ground that

C.R.P.No.5856 of 2007, dated 02.05.2008

the evidence, if produced, may not be of any help to the applicant.

6. Though Order 16, Rule 1, Civil Procedure Code does not in terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16, Rule 1 , Civil Procedure Code in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingence's the application must almost always be ordered."

12. The petitioner taken a plea that the petitioner had some

financial transactions with one Mr. Narasimha Murthy, Ex-

Serviceman and petitioner and the said Mr. Narasimha Murthy

has obtained signatures on three blank promissory notes, blank

white papers and one blank non-judicial stamp papers from the

petitioner. Therefore the petitioner filed the impugned applications

to summon the said Mr. Narasimha Murthy to examine him.

13. In view of the decision cited supra, the court below has

discretion to allow the application to do complete justice, where

the applications filed seeking issuance of summons to the witness

is not bona fide or vexatious or issuing summons would result in

abuse of process of law, the court can refuse to issue summons

and in all almost all other circumstances, the court shall issue

summons for examination of witness under Order 16, Rule 1 CPC.

In view of the decision cited supra, the proposed witness i.e Mr.

Narasimha Murthy has to be examined in the suits. If he is not

examined, any amount of prejudice will be caused. Further, it is

the right of the defendant to summon the witness as per law,

which cannot be curtailed on technical grounds. But the court

below shall give equal opportunity to the parties, while conducting

trial in the suits. The suits are coming up for arguments as per

e-courts status. Therefore evidence can be recorded before

arguments as per decision cited supra.

14. In view of the aforementioned circumstances, both the

C.R.Ps are allowed by a common order, while setting aside the

impugned orders of the court below. Since the suit of the year

2012, the court below is directed to dispose of the suit on merits

within four (04) months from the date of receipt of a copy of this

order. Both the parties are directed to co-operate with the court

below to disposal of the suit at the earliest. There shall be no order

as to costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________ DR.K.MANMADHA RAO, J Date: 13.10.2023.

KK

THE HON'BLE DR. JUSTICE K. MANMADHA RAO

C.R.P.Nos.4955 and 5134 of 2015

Date: 13.10.2023.

KK