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DINA NATH & ANR versus SMT. SHANTI DEVI

High Court of Punjab and Haryana, Chandigarh

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DINA NATH & Anr v. SMT. SHANTI DEVI - CR-5497-2005 [2005] RD-P&H 203 (25 October 2005)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.R. NO.5497 OF 2005

DATE OF DECISION: 27.10.2005

DINA NATH AND ANOTHER ......PETITIONERS

VERSUS

SMT. SHANTI DEVI ......RESPONDENT

CORAM:- S.S. SARON
PRESENT: Mr. P.C. Chaudhary, Advocate for the petitioners.

JUDGEMENT

This revision petition has been filed by the tenants-petitioners under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act 1973 ('Act' for short) against the order dated 13.10.2005 (Annexure P-1) whereby the prayer of the tenants-petitioners to summon the landlady- respondent as their witness has been declined.

The landlady-respondent has filed a petition under Section 13 of the Act seeking ejectment of the tenants-petitioners from two shops as detailed in the head note of the petition situated near old Civil Hospital, Dwarka Puri Mohalla, Sirsa and for delivery of its vacant, actual and physical possession to her. During the pendency of the petition, the tenants-petitioners deposited the expenses for summoning the landlady-respondent as their witness. In view of the said application having been allowed, the landlady- respondent filed an application for discharging her from appearance as a witness of the tenants-petitioners. It was alleged that the tenants-petitioners had intentionally and with a mala fide intention deposited the expenses of the landlady for being summoned as their witness. The landlady, it is stated, is an old lady and she remains ill and is not in a position to depose in the Court. Besides, she has already closed her evidence and her son Radhey Sham had appeared in Court as a special power of attorney on her behalf.

It was further stated that the landlady cannot be compelled to appear as a witness for the tenants-petitioners. The tenants-petitioners filed a reply to the said application of the landlady and submitted that the application was not maintainable. Besides, the landlady had been served as a witness to prove the facts as alleged in her petition but she has mala fidely disobeyed the order of the Court. Moreover, after framing of issues the landlady never appeared before the Rent Controller as a witness and the statement made by her Special Power of Attorney is not sufficient to ascertain real facts. Therefore, she is a necessary and material witness. The application of the landlady for her discharge as a witness having been allowed by the impugned order, the tenants-petitioners assail the same by way of the present petition.

Sh. Munish Jolly, Advocate learned counsel appearing for the tenants-petitioners has contended that the learned Rent Controller has gravely erred in allowing the application of the landlady-respondent. It is contended that in fact the landlady was summoned as a witness after deposit of the diet money on 23.7.2005 and the Rent Controller has no authority to review its order regarding summoning the landlady. Besides, the landlady cannot refuse to appear as a witness of the tenants-petitioners who have taken risk of her deposing against them. Moreover, to prove the actual position and bring the truth on the record the landlady should appear so as to enable the Rent Controller to do justice between the parties. It is contended that the landlady is avoiding her appearance so that the truth is not brought out on record. Accordingly, it is contended that the landlady-respondent be summoned as a witness after setting aside the impugned order.

I have given my thoughtful consideration to the contentions of the learned counsel appearing for the tenants-petitioners. The position with regard to summoning the opposite party to a suit as a witness for the other has generally been condemned. In Mahunt Shatrugan Das vs. Bawa Sham Das and others AIR 1938 PC 59, it was observed that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable. A Division Bench of the Mysore High Court in Mallangowda and others vs. Gavisiddangowda and another AIR 1959 Mysore 194 also held that the practice of calling the opposite party as a witness should not be countenanced as it is not in the interests of justice. Learned counsel for the petitioners however has contended that in the case in hand Radhey Sham son of the landlady has appeared as an attorney of the landlady whereas it is necessary to summon the landlady herself as a witness so that the relevant circumstances which are necessary for the decision of the case can be put to her. It is contended that in view of the decision of the Supreme Court in Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others (2005) 2 SCC 217 wherein it has been held that the power to depose on behalf of principal extends only to depositions in respect of "acts" done by power of attorney holder in exercise of power granted by the instrument and the term "acts" would not include deposing in place of and instead of the principal for acts done by principal, the landlady is liable to be summoned as a witness so that the acts done by her are put to her. In this regard it may appropriately be noticed that whatever adverse inference is available to the tenants- petitioners for the non-appearance of the landlady would be considered by the Rent Controller after evidence has been completed. This however, would not entitle the tenants-petitioners to seek the appearance of the landlady in the case specially when she does not want to appear as a witness.

The learned counsel for the petitioner has cited other judgements also which may be considered. In Vidhyadhar vs. Mankikrao and another AIR 1999 SC 1441, it was observed that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. Therefore, whatever legal right that may accrue to the tenants-petitioners is to be considered by the Rent Controller. However, that by itself cannot be a ground to seek the appearance of the opposite party as a witness for the other. In M.C. Ananda and another v. M.C.Chikkanna and another AIR 2001 Karnataka 139, it was held that plaintiff can summon defendant as a witness. However, the Court has the power to reject such prayer as practice of calling the opposite party is considered to be an unhealthy practice. It was held that the application of plaintiff in the said case to summon defendant was rejected on erroneous view that the plaintiff is not entitled to summon defendant as a witness. Therefore, the right to summon opposite party as a witness is there. However, the practice being an unhealthy one is generally not resorted to specially where the opposite party itself has declined to appear. In Braja Mohan Patra vs.

Ananta Charan Patra and others AIR 2003 Orissa 209, it was held that the application by plaintiff to examine one of defendants as witness on his behalf can be allowed. The rejection of the application on the ground of physical condition of defendant and condemnability of practice in calling adverse party as witness was held to be improper. Directions were given in the said case that if physical incapability of defendant continues, the trial Court shall appoint a doctor to accompany the Local Commissioner and then evidence of defendant be recorded. The said case is confined to its own facts and even otherwise depending on the facts and circumstances of each case such a prayer can be allowed and it is not always that a party cannot call the opposite party as a witness. However, in the case in hand, the special attorney for the landlady has already appeared and in case the landlady does not wish to appear, there is no reason to compel her to appear. Besides, whatever adverse inference which can be drawn for her non appearance shall be considered by the Rent Controller at the appropriate stage of the case. In V.K. Periasamy alias Perianna Gounder V.D. Rajan AIR 2001 Madras 410 it was held that if there are very good reasons for summoning the opposite party as a witness, the Court may exercise its discretion in favour of the party seeking permission. There is no dispute to the said proposition. In the case in hand no sufficient and good reasons have been given for summoning the opposite party as a witness except that to bring out the truth she is required to be summoned. This by itself in the circumstances is not enough. Besides, the Rent Controller having exercised his jurisdiction in allowing the application of the landlady and discharging her from appearance in the case does not warrant any interference of this Court in exercise of its revisional jurisdiction.

The contention that the Rent Controller has reviewed his earlier order is also without any merit. In fact, the earlier order dated 23.7.2005, which is stated to have been reviewed, has not been filed with the case and it appears to be a simple innocuous order recorded on the application for summoning the witnesses without realising that the tenants-petitioners had sought the summoning of the landlady-respondent as a witness. Therefore, such an order having been passed for summoning the landlady as a witness would be subject to the right of the landlady to raise objections against the same especially when it is not shown to have been passed after notice to her.

As such, it cannot be said that the learned Rent Controller has reviewed its earlier order dated 23.7.2005.

For the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed.

October 27, 2005 (S.S. SARON)

ps JUDGE


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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