Sudhir Kher vs Smt. Jyoti Shewak Lakhwani
2022 Latest Caselaw 3733 MP

                                          1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                                     BEFORE
              HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                     ON THE 16th OF MARCH, 2022
                    MISC. PETITION No. 172 of 2018

Between:-
1.        SUDHIR KHER S/O SHRI J.K. KHER , AGED ABOUT 58 YEARS,
OCCUPATION: BUSINESS R/O KHER VILLA, M-15, SAINIK SOCIETY,
SHAKTINAGAR, JABALPUR (MADHYA PRADESH)
2.     SMT. SEEMA KHER W/O SHRI SUDHIR KHER , AGED ABOUT 52 YEARS,
OCCUPATION: BUSINESS R/O KHER VILLA, M-15, SAINIK SOCIETY,
SHAKTINAGAR, JABALPUR (MADHYA PRADESH)
3.     KU. GUNIKA KHER D/O SHRI SUDHIR KHER , AGED ABOUT 21 YEARS,
OCCUPATION: STUDENT R/O KHER VILLA, M-15, SAINIK SOCIETY,
SHAKTINAGAR, JABALPUR (MADHYA PRADESH)
.....PETITIONERS/PLAIANTIFFS
    (BY SHRI R.K. SANGHI, ADVOCATE )

AND
1.       SMT. JYOTI SHEWAK LAKHWANI W/O SHEWAK LAKHWANI , AGED
ABOUT 56 YEARS, OCCUPATION: HOUSE WIFE R/O 28 VASU PUJYA
BANGLOWS OPPOSITE FUN REPUBLIC CINEMA, SALELLITE AREA,
AHMEDABAD GUJRAT (GUJARAT)
2.      JAI PRAKASH LAKHWANI S/O SHEWAK LAKHWANI , AGED ABOUT 31
YEARS, OCCUPATION: BUSINESS R/O PLOT NO.539, LILA SHAH NAGAR,
KUTCH, GHANDHIDHAM (GUJARAT)
3. . CHOLA MANDLAM MS GENERAL INSURANCE CO.LTD. HEAD OFFICE AT
2ND FLOOR 2 NSC BOSE ROAD, CHENNAI, BRANCH AT OPPOSITE HOTEL
NEST, NEAR BHAVARCH RESTAURANT, NAVRANGPURA (GUJARAT)
.....RESPONDENTS/DEFENDANTS
    (BY SHRI T.S. LAMBA, ADVOCATE FOR RESPONDENT NO.3 )


      This petition is coming on for hearing this day, the court passed the
following:


                                      ORDER

The petitioners have preferred this petition under Section Article 227 of the Constitution of India against order dated 29/11/2017 passed by IXth Additional Motor Accident Claims Tribunal, Jabalpur in MVC No. 291/20150, whereby the application filed on behalf of the petitioners under Section 151 of CPC for summoning the material witnesses for proving the income of the deceased was rejected.

2. The facts giving rise to this petition are that the petitioners/claimants have filed a claim case for compensation under Section 166 of the Motor Vehicles Act, 1988 on account of death of their son Jatin Kher (deceased). During pendency of the claim case, on 29/11/2017, they moved an application under Section 151 of CPC for summoning of witnesses namely, Income Tax Officer Jabalpur and Accounts Manager Hotel Fortune Landmark, Ahamdabad, Gujrat with regard to proved the income of the deceased, which was dismissed vide impugned order, which is a subject matter of challenge in the present petition.

3. Learned counsel for the petitioners submits that the petitioners/claimants have preferred an application for grant of compensation under Section 166 of the Motor Vehicle Act, 1988 and M.P. Motor Vehicle Rules, 1994 on account of death of Jatin Kher. The petitioners/claimant Nos. 1 and 2 entered into witness box for leading evidence on behalf of the claimants. Thereafter, the case was fixed for evidence of non-applicants/respondents. However, the respondent Nos. 1 and 2 chose to remain ex-parte during proceedings and no evidence was lead on their behalf. Non-applicant No.3 i.e. the Insurance Company sought various opportunities for giving evidence. However, the learned Tribunal closed their chance for giving evidence and fixed the case for final arguments. At the time of preparation for final arguments, the counsel for the claimants found that there was two more material witnesses, which needs to be examined with respect to prove the income of the deceased, therefore, on 29/11/2017, the petitioners/claimants filed an application under Section 151 of CPC for summoning the Income Tax Officer Jabalpur and Accounts Manager Hotel Fortune Landmark, Ahamdabad, Gujrat with regard to proved the income of the deceased. However, by impugned order the learned Tribunal was dismissed the said application on the ground that the application has been filed belatedly and the matter is pending since 2012. The learned trial Court lost sight of the fact that the petitioners/claimants are layman and have no knowledge of the legal procedures, therefore, the impugned order is perverse and the same is liable to be set aside.

4. Learned counsel for the respondent No.3/Insurance Company Ltd. opposed the prayer by contending that the petitioners filed the said application at belated stage on 29/11/20107; whereas the matter is pending since 2012, therefore, the trial Court has not committed any error in rejecting the said application.

5. Having heard the learned counsel for the parties and perused the record.

6. From the perusal of the proceedings of the trial Court, it appears that on

29/11/2017, the petitioners/claimants filed an application under Section 151 of CPC supported with the affidavit of petitioner/claimant No.1 for summoning of witnesses namely, Income Tax Officer, Jabalpur (M.P.) & Accounts Manager, Hotel Forture Landmark, Ahamdabad, Gujrat by contending that the aforesaid witnesses are not under the control of the claimants, therefore, summons are necessary to be issued to ensure their presence for recording their evidence. However, the trial Court vide impugned order, rejected the same by holding that the application was filed belatedly; whereas the matter is pending since 2012. The grievance of the petitioners/claimants are that due to rejection of the said application, their defence will be seriously prejudiced, therefore, they be permitted to recall the above witness for evidence. In support of his contention, learned counsel for the petitioners has placed reliance on the judgment of 2011(1) MPLJ 624, Asharam s/o Durga Singh and another, wherein this Court held that where a document alleged to have beenforgedthe expert's opinion ought to be called. To bolster his submissions,placed reliance on paragraph 8 of Division Bench judgment in A sharam s/o Durga Singh(supra) which reads as under:

"True, the plaintiffs should be vigilant during the trial and should have filed such an application if they want to get the said document proved by the handwriting expert at an early stage. But, one important fact which cannot be marginalized and blinked away is that the procedural law is always meant to administering justice. Under sections 47 and 67 of the Evidence Act, no particular mode is provided by the Legislature that how and in what manner a document should be proved. There are several modes of proving a document and one of the mode is to get the document proved by examining the handwriting expert. If the plaintiffs are praying to the Court to provide an opportunity to prove a document by handwriting expert, according to us, the procedural law is not that much tight not to provide justice to the plaintiffs."

7. In the context of the controversy which is involved in the present petition, it would be apposite to refer to Order XVI Rule 1 and Rule 1A of the CPC which are reproduced as under :-

ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES List of witnesses and summons to witnesses

(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).

1A. Production of witnesses without summons - Subject to the provisions of sub- rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.

8. The underlying scheme of Order XVI Rule 1 CPC is that after the Court frames issues and serves notice on the parties enabling them to determine what evidence, oral and documentary they would like to lead, a party can act either in accordance with Rule 1 or Rule 2. Where the party wants the assistance of the Court for presence of a witness on being summoned through the Court, it is obligatory on the party to file a list of witnesses in the Court as directed by sub- rule 1 of Rule 1. This advance filing of list is necessary because summoning of witness through Court is a time consuming process and to avoid delay the parties are under obligation to file the list of witnesses within time stipulated under sub- rule (1) of rule 1.

9. Sub-rule (3) of Rule 1 of Order XVI CPC refer to the situation where the party has failed to name the witness in the list and is unable to produce him under Rule 1A, in such a situation, the party of necessity has to seek the assistance of the Court under sub-rule (3) of Rule 1 to procure the presence of the witness. However, when such assistance is sought, the party is enjoined to give reasons as to why it has not filed the application within the time prescribed under Rule 1 of Order XVI CPC.

10. The Court may, if it is satisfied that the party has sufficient cause for omission to mention the name of such witness in the list filed under sub rule (1) of Rule 1, permit the issuance of summons through the Court for seeking presence of witness whose name was not included in the list.

11. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. In such circumstances, Keeping the above principles in mind, when this Court examined the case on hand, at the very outset, it will have to be stated that the trial Court, while passing the impugned order has completely ignored the principle objectives of summoning witnesses.

12. Looking to the peculiar facts and circumstances of the case, the present petition filed by the petitioners/claimants is allowed and the impugned order dated 29/11/2017 passed by IXth Additional Motor Accident Claims Tribunal, Jabalpur in MVC No. 291/2015 is hereby set aside. It is made clear that the petitioners/claimants are not entitled for getting any benefit of rate of interest on the claim amount for the period, which has been delayed by petitioners in this regard. The trial Court is directed to summon the Income Tax Officer, Jabalpur (M.P.) & Accounts Manager, Hotel Forture Landmark, Ahamdabad, Gujrat and grant only one opportunity to the petitioners/claimants to examine them. Expenses of the aforesaid witnesses will be borne by the present petitioners. Needless to say that interim relief granted in favour of the petitioners/claimants, vide order dated 10/01/2018 stands vacated.

13. Let a copy of this order be sent to the concerned trial Court for information and necessary compliance.

Certified copy as per rules.

(ARUN KUMAR SHARMA) JUDGE skt

Signature Not Verified SAN

Digitally signed by JITENDRA KUMAR PAROUHA Date: 2022.03.22 18:01:44 IST