Delhi High Court
The Management Of M/S Institute Of ... vs Kashi Nath Sharma on 3 November, 2014
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:3rd November, 2014
+ W.P.(C) 7549/2014
THE MANAGEMENT OF M/S INSTITUTE OF PUBLIC HEALTH
& HYGINE ..... Petitioner
Represented by: Mr.Nimish Chib, Adv. with
Mr.Shashank Sharma, Adv.
versus
KASHI NATH SHARMA ..... Respondent
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
C.M.No.17829/2014 (Exemption)
Exemption allowed subject to all just exception.
The application stands disposed of.
W.P.(C) 7549/2014 & C.M.No.17828/2014 (Stay)
1. Vide the present petition, the petitioner seeks setting aside of the
impugned order dated 11.09.2014 passed in LIR/D No.54/2011 passed by
learned Tribunal, upon an application moved by the petitioner for recalling
of order dated 15.03.2014, whereby the learned Tribunal directed to
summon the witnesses.
2. It is important to note that vide order dated 04.01.2014 on statement
of learned ARM, the witnesses namely, Vijay Kumar, Nagnia and Nalini
Joshi were dropped. Thereafter the claimant filed an application for
summoning of aforesaid witnesses to prove his case.
3. Learned counsel for the petitioner submits that the petitioner has right
to examine or not examine any of the witnesses. In that eventuality the
learned Trial Court had no power to summon the aforesaid witnesses on the
application made by the respondent/workmen. Moreover, said witnesses are
not necessary to adjudicate the claim of the respondent.
4. To strengthen his arguments, learned counsel for the petitioner has
relied upon the case of Dr.Amitabha Sen v. M/s Sports World International
Ltd. & Ors. AIR 2008 Delhi 118 whereby held as under:-
"14. Considering the present application in the
light of the legal position indicated above, it is
apparent that insofar as Mr.Justin Barnes is
concerned, he is not at all required to be
summoned as the plaintiff's witnesses inasmuch as
he has already listed as a witness on behalf of the
defendants. As regards Mr.Peter Barnes, he is a
partner in defendant No.6 just as Mr.Justin Barnes
is a partner in defendant No.6. He also happens to
be a father of Mr.Justin Barnes. It is for the
defendants to make the risk of not producing both
the witnesses and, instead, only rely upon the
testimony of one of the two witnesses who are
placed in identical or, if not identical, similar set
of circumstances.
15. Coming now to the question of summoning
Mr.Mike Ashley, I am in agreement with the
submissions made by the learned counsel for the
defendants that Mr.Mike Ashley, being the sole
shareholder of the defendant No.1 is being
summoned perhaps with the object of putting some
pressure on him and allowing the application
would not be in the interest of justice. Apart from
this, I find that there is nothing which has been
produced by the plaintiff to indicate that he had
any direct dealings with Mr.Mike Ashley at any
time during the currency of his engagement on
behalf of the defendant No.1 through defendant
No.6. All the dealings of defendant No.1 with the
plaintiff have been through defendant No.6 and the
other associated defendants, being defendants 2 to
5. It is clear that summoning by an opposite side
party witness or an opposite party is an unusual
step and should be allowed only where exceptional
circumstances are shown. No such circumstances
exist in this case."
5. It cannot be disputed that any of the party is at liberty to examine the
witness of his choice but if any of the party wishes to examine any witness
to establish its claim, in that eventuality the Tribunals or Courts should
examine those witnesses.
6. It is trite that there is no bar to a party seeking summoning of another
party as witness, however, it is also clear that summoning of witness should
be bona fide and is not vexatious or an abuse of the process of court.
7. In the present case, had the witnesses mentioned above were
examined by the petitioner, by cross-examining them the
respondent/Workmen would have established its case by proving the length
of service. In the absence of said witnesses, it became necessary to examine
these witnesses to establish the claim of the Workmen.
8. In view of the above, I find no discrepancy in the order dated
11.09.2014 passed by the Tribunal.
9. Accordingly, the writ petition along with pending application is
dismissed with no order as to costs.
SURESH KAIT
(JUDGE)
NOVEMBER 03, 2014
mr/sb
