REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 883  OF 2009     (Arising out of SLP©No.8412 of 2008)

Ashok Sharma        ..Appellant

VERSUS

Ram Adhar Sharma    ...

Respondent

J U D G M E N T

TARUN CHATTERJEE, J.

1. Leave granted.

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,  inclusive  of  electricity  bill  and

maintenance charges of the UNA Cooperative Society (in

short ‘the Society’).  

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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 and for other reliefs.  

4. On or about 27th of November, 2004, issues 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  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 examination :-

“I  am  the  President  of  UNA  Cooperative Group Housing Society.   I have seen the document already exhibit as Ex.PW/1/3. I identify my signature on this document.  I have  produced  the  documents,  the construction of society.”   

5. After  closure  of  examination  and  cross-examination,

the  trial  court  closed  his  examination,  but  the  witness

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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 under 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 summoned to bring the

record  to  prove  the  documents  placed  on  record  by  the

parties to the suit and since the document in question 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 the aforesaid refusal to accept the

document,  as  noted  hereinabove,  the  respondent  filed  a

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 aforesaid prayer of the respondent was raised that a

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witness under Order XVI Rule 1 read with Rule 1-A of the

Code  cannot  produce  documents  as  it  envisages  that  a

witness can either adduce evidence or produce document in

Court.  As noted herein earlier, the High Court allowed the

said  document  to  be  taken  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 for the parties.     

8. We  have  heard  learned  counsel  for  the  parties  and

examined the provisions under Order XVI Rule 1 read with

Rule  1-A  of  the  Code,  under  which  the  document  was

directed to be produced and taken on record by the High

Court by reversing the order of the trial Court refusing to

take the document on record.   

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9. The trial  Court,  as noted  herein  earlier,  refused  the

prayer  for  production  of  the  document  on  a  simple

interpretation of  the  word “production”  as  used  in Order

XVI Rule 1 of the Code which, according to the trial Court,

would mean that the witness can be summoned to bring

the record to prove the documents placed on record by the

parties  to  the  suit,  but  in  the  present  case,  the  said

document was not produced by the respondent either along

with  the  plaint  or  at  the  time  of  framing  of  issues  and,

therefore,  no  document  can  be  taken  on  record  at  that

stage.     

10. In our view, the High Court was justified in permitting

the document to be taken on record at the instance of the

witness PW-3.  It  is not in dispute that the copies of the

same cannot 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

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being in possession of the record showing the completion of

the construction of the suit premises could not be with the

plaintiff/respondent  whereas  the  said  document  must  be

with  the  society,  whose  President  came  forward  to  give

evidence and to produce the documents.   

11.   Order  XVI  of  the  Code  deals  with  summoning  and

attendance 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 a list of witness whom they propose to call either to

give  evidence  or  to  produce  documents  and  obtain

summons to such persons for  their  attendance  in Court.

Order XVI Rule 1-A, 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  -  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.”

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12. A plain reading of this provision would clearly show 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  15  days  of

settlement  of  issues.  After  issues  were  framed,  the

respondent in order to prove the date of completion of

construction of the Society in which the suit premises is

located,  summoned  Sh.  Pawan  Kumar  Vasudeva,  the

President  of  the Society,  (PW-3)  to bring the record of

completion of construction of the suit premises which is

located in the said area of the Society.  The trial  court

had  allowed  the  summoning  of  the  President  of  the

Society  for  the  purpose  of  showing  the  time  of  the

completion of  construction of  the suit  premises.  PW-3

identified  his  signature  on Ext.PW-1/3 which was the

certificate issued by the said society to the respondent.

Thereafter, the said witness produced the documents of

completion  of  construction  of  the  society  which  were

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summoned by the respondent, but the trial court by the

order  dated  2nd of  May,  2006  rejected  the  application

and did not allow the witness to place the documents

brought  by  him  on  record  on  the  ground  mentioned

herein earlier.   

13. As noted herein earlier, the High Court has reversed the

order  of  the  trial  court  and allowed  production of  the

document produced by PW-3. In our view, there is no

ground for which we can hold that the order of the High

Court was not properly passed. As noted herein earlier,

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, without

applying for summons, bring a witness to give evidence

or to produce documents.  Since Rule 1A is subject to

the provisions of sub-Rule 3 of Rule 1, all that can be

contended  is  that  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

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by itself would not mean that Rule 1-A was in derogation

to sub-Rule 3 of Rule 1.  Such document brought by the

said  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.   Be  it  mentioned

herein, the question of filing a copy of the said document

by the plaintiff  could not also arise in view of the fact

that the document was or cannot be in possession of the

plaintiff-respondent.  Since the plaintiff-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 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 :-     

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“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  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)

SCC 573], this Court following the decision of Mange Ram

vs. Brij  Mohan & Ors. [supra]  has also held that Order

XVI, Rule 1 and Rule 1A of the 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 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

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taken  on  record  to  prove  the  date  of  completion  of  the

construction  of  the  suit  premises  within  the  area  of  the

Society. At the risk of repetition, it 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 could

only be produced by the Society.  

14.For  the  reasons  aforesaid,  there  is  no  merit  in  this

appeal. The appeal is thus dismissed. There will be no

order as to costs.

                           …………………...J.

[Tarun Chatterjee]

New Delhi;          ……………….….J.

February 11, 2009.  [V.S.Sirpurkar]

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