Supreme Court of India
ASHOK SHARMAversusRAM ADHAR SHARMA
- Citation
- 2009 INSC 151
- Decided
- 11 February 2009
- Disposal
- Dismissed
- Bench
- TARUN CHATTERJEE
Holding
Order XVI Rule 1 together with Rule 1‑A allows a party to bring a witness to produce documents, and the documents may be taken on record even if not previously filed.
Summary
The respondent, Ram Adhar Sharma, filed a suit for possession of a flat in a cooperative housing society against the appellant, Ashok Sharma, who was occupying the flat as a tenant. During trial, the President of the society (PW‑3) was summoned and, after his testimony, sought to produce a document establishing the date of completion of the flat's construction. The trial court refused, holding that a witness could not produce documents under Order XVI Rule 1 of the CPC. The High Court reversed this decision, allowing the document to be taken on record. On appeal, the Supreme Court held that Order XVI Rule 1 read with Rule 1‑A expressly permits a party to bring a witness to produce documents, and such documents may be recorded even if not previously filed, especially when the party does not possess them. Consequently, the High Court’s order was justified and the appeal was dismissed.
Issues considered
- Whether a witness summoned under Order XVI Rule 1 of the CPC may produce documents not previously filed in the suit.
- Whether such documents can be taken on record under Order XVI Rule 1 read with Rule 1‑A.
Legislation cited
- Code of Civil Procedure, 1908s. Order XVI Rule 1, s. Order XVI Rule 1-A
Subjects
Civil ProcedureOrder XVIWitness production of documentsPossession suitCooperative housing societyEvidenceDocument production
Judgment
[2009] 2 S.C.R. 9
ASHOK SHARMA A
v.
RAM ADHAR SHARMA
Ci-vii Appeal No. 883 Of 2009
FEBRUARY 11, 2009
B
[TARUN CHATTERJEE AND V.5. SIRPURKAR, JJ.]
Code of Civil Procedure, 1908 ;
+
Or.16, rr. 1 and 1A - Suit for possession of flat located in
Housing Society- On application of plaintiff, trial court allowed c
summoning of PW3, President of the Society - PW3 sought
permission to file document to prove date of completion of
construction of the flat- Trial court declined permission - High
-;
Court reversed the order and permitted the document to be
taken on record at the instance of PW3 - Justification of - D
Held: Justified - Plaintiff wa.s simply a member of the Haus-
ing Society and could not be in possession of the concerned
document - The document was in possession of the Society,
whose President i.e. PW3 camf3 forward as a witness to give
evidence and to produce the document -Document brought E
by PW3 could be taken on record.
Responctent filed suit for possession of flat located
in a Cooperative Group Housing Society. Issues were
framed by the trial Court and both the parties were directed
to file list of witnesses/documents. On application of the F
Respondent, the trial court allowed summoning of PW3,
President of the Society. After the examination of PW3 was
closed, he sought permission to file certain document to
prove the date of completion of construction of the flat.
..-'] The trial court declined permission on the ground that a G
witness could not be allowed to produce documents un-
der Or, XVI r.1, CPC and since the document in question
was not produced by the respondent either along· with
9 H
10 SUPREME COURT REPORTS [2009] 2 S.C.R.
A the plaint or at the time Qf framing of issues, at this stage
it could not be taken on record. High Court reversed the
order of the trial court and permitted document to be taken
on record at the instance of PW-3. Hence the present ap-
peal.
B Dismissing the appeal, the Court
HELD: The High Court was justified in permitting the
document to be taken on record at the instance of PW-3.
Or.XVI, rr. 1 and 1-A CPC, if read together, clearly indicate
c that it is open to a party to summon a witness to the Court
or even may, without applying for summons, bring a wit-
ness to give evidence or tO produce documents. Such
document brought by the witness can be taken on record
and it is not necessary that the plaintiff must have filed on
record the copies of the said document earlier. In the
0
present case, the question of filing a copy of the said docu-
ment by the plaintiff could not arise in view of the fact that
the document could not be In possession of the plaintiff-
respondent. Respondent was simply a member of the
Society, therefore, the record of completion of the con-
E struction of the flat i.e. the suit premises could only be
proved by the respondent by production of documents
which was only in possession with the Society, whose
President came forward to give evidence and to produce
the documents. [Paras 10, 13] [ 13-D, E ; 14-G, H]
F
Mange Ram v. Brij Mohan & Ors. AIR (1983) SC 925
and Vid/?ygdhar v. Manikrao & Anr. (1999) 3 SCC 573 - relied
on.
Case Law Reference
G
AIR (1983) SC 925 relied on Para 13
(1999) 3 sec 573 relied on Para 14
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 883
H of 2009
ASH.OK SHARMA V RAM ADHAR SHARMA 11
From the Judgement and Order dated 11.01.2008 passed A
by the High Court of Delhi, at New Delhi in Civil Miscellaneous
(Main) 978 of 2006
Manish Sharma, C.L. Sahu for the Appellant.
Rajesh Mahindru, Sa rad Kumar Singhania for the Respon· B
dent.
The Judgement of the Court was delivered by
TARUN CHATTERJEE, J.
+ ,..
1. Leave granted. c
2. In the year 1995, the respondent Shri Ram Adhar
Sharma let out his flat bearing No.11·C, Una Enclave, Mayur
Vihar, Phase-I, Delhi-110091 (hereinafter referred to as the 'suit
premises') to the appellant at a rental of Rs.3000/- per month,
D
inclusive of electricity bill and maintenance charges of the UNA
Cooperative Society (in short 'the Society') .
•
3. Now a suit has been filed by the respondent in the Court
of the District Judge, Delhi for a decree for possession and
also for a decree of Rs.1,01,880/- with interest accrued thereon E
and for other reliefs.
4. On or about 27th of November, 2004, iss~es were framed
by the trial Court and both the parties were directed to file list of
-\ witnesses/documents within 15 days from the aforesaid date.
The parties went to trial and the respondent brought Sh.Pawan F
Kumar Vasudeva, the President of the UNA Cooperative Group
Housing Society, within which the suit premises is located, who
deposed as PW-3 and made the following statement in his ex-
amination :-
G
"/ am the President of UNA Cooperative Group Housing
~
Society. I have seen the documefli already exhibit as
Ex.PW/113. I identify my signature on this document. I
have produced the documents, the construction of
society."
H
12 SUPREME COURT REPORTS [2009] 2 S.C.R
A 5.-After closure of examination and cross-examination-, the
trial court closed his examination, but the witness Pawan Kumar
Vasudeva-PW-3 sought permission of the court to file certain
documents which was not allowed by the trial court on the ground
that a witness could not be allowed to produce documents un-
8 der Order XVI Rule 1 of the Code of Civil Procedure (in short
'the Code') as the term "production", as mentioned in Order
XVI Rule 1 of the Code shall mean that the witness can be sum-
moned to bring the record to prove the documents placed on
record by the parties to the suit and since the document in ques- +
C tion was not produced by the respondent either along with the
plaint or at the time of framing of issues, such document at that
stage could not be taken on record.
6. Feeling aggrieved by th~ aforesaid refusal to accept
the document, as n_oted hereinabove, the respondent fi.led a
0
revisional application before the High Court of Delhi and by the
impugned order; the High Court had allowed production of the
document and directed that the said document be taken on
record. Before the High Court, a plea for rejection of the afore-
E saiq_ prayer of the respondent was raised that a witness under
Order XVI Rule 1 read with Rule 1-A of the Code cannot pro-
duce documents as it envisages that a witness can either ad-
duce evidence or produce document in Court. As noted herein
earlier, the High Court 'allowed the said document to be taken
F on record by allowing the revision setting aside the order of the
trial Court.
7. Feeling aggrieved and dissatisfied with the order of the
High Court, the appellant filed a Special Leave Petition, which
on grant of leave, was heard in presence of the learned counsel
G for the parties.
8. We have heard learned counsel for the parties and ex-
amined the provisions under Order XVI Rule 1 read with Rule -
1-A of the Code, under which the document was directed to be
H produced and taken on record by the High Court by reversing
ASHOK SHARMA V RAM ADHAR SHARMA 13
[TARUN CHATTERJEE, J.]
the order of the trial Court refusing to take the document on A
record.
"/'
9. The trial Court, as noted herein earlier, refused the
prayer for production of the document on a simple interpreta-
tion of the word "production" as used in Order XVI Rule 1 of the
B
Code which, according to the trial Court, would mean that the
witness can be summoned to bring the record to prove the docu-
ments placed on record by the parties to the suit, but in the
present case, the said document was not produced by the re-
·~
spondent either along with the plaint or at the time of framing of
issues and, therefore, no document can be taken on record at
c
that stage.
f
10. In our view, the High Court was justified in permitting
the document to be taken on record at the instance of the wit-
ness PW-3. It is not in dispute that the copies of the same can- D
not be placed on record by the respondent and they can only be
produced on record by summoning the witness, who has the
power and possession of the said documents. It is an admitted
position as well that since the respondent is simply a member
of the society, question of being in possession of the record E
-i
showing the completion of the construction of the suit premises
could not be with the plaintiff/respondent whereas the said docu-
ment must be with the society, whose President came forward
-I
to give evidence and to produce the documents.
F
11. Order XVI of the Code deals with summoning and at-
tendance of witnesses. The Court under Order XVI Rule 1, on
or before the date, may appoint but not later than 15 days after
the issues are settled, the parties shall present in Court~ list of
witness whom they propose to call either to give evidence or to
G
produce documents and obtain summons to such persons for
,,.. their attendance in Court. Order XVI Rule 1-/\, however, gives a
""' right to a party to a suit to produce witness without summons.
Order XVI Rule 1-A of the Code runs as under:-
"Rule 1A : Production of witnesses without summons H
-}
14 SUPREME COURT REPORTS [2009) 2 S.C.R.
\.
A - 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." '
r
12. A plain reading of this provision would clearly show
B
that Rule 1-A of Order XVI of the Code has been substituted by
the Legislature to empower a party to bring any witness without
obtaining summons subject to the permission of the Court,~even
if the name of the witness is not in the list to be presented within
i.
15 days of settlement of issues. After issues were framed, the (-
c respondent in order to prove the date of completion of construe-
tion of the Society in which the suit premises is located, sum- r
I
l=
moned Sh. Pawan Kumar Vasudeva, the President of the Soci-
ety, (PW-3) to bring the ·record of completion of construction of
t~e suit premises which is located in the said area of the Soci-
D
ety. The trial court had allowed the summoning of the President
of the Society for the purpose of showing the time of the comple-
-+
tion of construction of the suit premises. PW-3 identified his L
signature on Ext.PW-1/3 which was the certificate issued by ..'
the said society to the respondent. Thereafter, the said witness
E
produced-th~ documents of completion of construc!ion of the
society which were summoned by the respondent, but the trial
court by the order dated 2"d of May, 2006 rejected the applica- '
I
tion and did not allow the witness to place the documents
f
F ·brought by him on record on the ground mentioned herein ear-
+-
lier.
13. As noted herein earlier, the High Court has reversed
the order of the trial court and allowed production of the docu-
ment produced by PW-3. In our view, there is no ground for which
G we can hold that the order of the High Court was not properly
passed. As noted herein e·arlier, Order XVI Rule 1 and 1-A of
the Code, if read together, would clearly indicate that it is open
to a party to summon a witness to the Court or even may, with-
out applying for summons, bring a witness to give evidence or
H to produce documents. Since Rule 1A is subject to the provi-
,._
-.'
./
~
I-
)
~
'
ASHOK SHARMA V RAM ADHAR SHARMA - 15
[TARUN CHATTERJEE, J.]
..
sions of sub-Rule 3 of Rule 1, all that can be conten.ded is that'"· A
before proceeding to examine any witness, who might' have
been brought by a party for the purpose, the leave of the Court
may be necessary. This by itself would not mean that Rule 1_-A ·
was in derogation to sub-Rule 3 of Ru_le 1. Such document
brought by the said witness can be taken on record and it is not ·- B
necessary that the plaintiff must have filed on record the copies
of the said document earlier. Be it mentioned herein, the ques-
tion of filing a copy of the said document by the plaintiff could
-t not also arise in view of the fact that the document was or can-
not be in possession of the plaintiff-respondent. Since the plain- c
tiff-respondent was simply a member of the Society, therefore,
the record of completion of the construction of the suit premises
can only be proved by the plaintiff/respondent by production of
documents which was only in possession with the Society. While
considering the scope of Order XVI, Rule 1 and Rule 1A of the
0
Code, this Court in Mange Ram Vs. Brij Mohan & Ors. [AIR
• 1983 SC 925] held that the Court cannot decline to examine
the witnesses produced by the plaintiff nor the court could refuse
to take the documents on record through the witnesses. In para
11 of the said decision, this Court observed as follows:-
E
"But if on the date fixed for recording the evidence in an
election petition, the party is able to keep his witnesses
present despite the fact that the names of the witnesses
are not shown in the list filed under sub-rule (1) of Rule 1,
the party would be entitled to examine these witnesses F
and to produce documents through the witnesses who are
called to produce documents under Rule 1A." (Emphasis
Supplied)
14. Again in Vidhyadhar Vs. Manikrao & Anr.[1999 (3)
sec 573], this Court following the decision of Mange Ram VS. G
_.. Brij Mohan & Ors. [supra] has also held that Order XVI, Rule 1
and Rule 1A of t~e Code permits the court to pass the order
directing the witnesses to take the documents on record. Only,
while dealing with the application for production of documents
under Order XVI Rule 1 read with Rule 1-A of the Code, what is H
'
16 SUPREME COURT REPORTS [2009] 2 S.C.R.
r
A required was that, leave of the court would be necessary. In this ;.
view of the matter and applying the principles laid down in the ~
aforesaid two decisions of this Court, we are not inclined to ~,__
interfere with the impugned order of the High Court by which the
High Court had allowed the documents to be taken on record to
.
l
:t-
B prove the date of completion of the construction of the suit pre-
>
mise_s within the area of the Society. At the risk of repetition, it I
must be stated that the date of construction of the suit premises,
which is located within the-area of the Society, cannot be proved ·
except by the production of the document of the society which
c could only be produced by the Society.
14. For the reasons aforesaid, there is no merit in this ap-
peal. The appeal is thus dismissed. There will be no order as to
costs.
B.B.B. Appeal dismissed.
'I-
)-
1
I
~
~
1--
"'"
~
)'
~
I
\.
I
ib"
t
:i
"-
I
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Civil Procedure"Sign in to search