IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE. Judgment delivered on:

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Judgment delivered on: IA No /2007 in CS (OS) 2085/2006 (Under Order 16 Rule 1 CPC) DR AMITABHA SEN....Plaintiff - versus - M/S SPORTS WORLD IN TERNATIONAL LIMITED AND OTHERS...Defendants Advocates who appeared in this case: For the Plaintiff : Plaintiff in person along with Ms Pooja Singh, Ms Bhavna Gulati, Mr P.R. Jaipuria, Ms Neha Singh and Ms Rohini Aggarwal. For the Defendants : Mr Rajiv Nayyar Sr Advocate with Mr Mudit Sharma, Ms Misha and Mr Muazzam Khan BADAR DURREZ AHMED, J(ORAL) 1. This application has been filed by the plaintiff for summoning of three witnesses who have been listed as PW-II, PW-III and PW-IV. PW-II (Mr Mike Ashley) is the sole shareholder of the defendant No.1 (M/s Sportsworld International Limited). PW-III (Mr Justin Barnes) is the defendant No.2 and PW- IV (Mr Peter Barnes) is the defendant No.4. It is an admitted position between the parties that PW-III, Mr Justin Barnes and PW-IV Mr Peter Barnes are both partners of defendant No.6. Mr Justin Barnes is also the CEO and owner of defendant No The controversy between the parties is that the plaintiff, who is an advocate, was engaged for services to be rendered to defendant No.1. The case of the plaintiff is that his dues on account of professional fees have not been cleared by the defendants. Apart from this, the plaintiff has also claimed damages from the defendants. The case of the defendants is that the defendant No.6, which is an international firm of trade mark attorneys and had been looking after the interests of Defendant No.1, had dealt with the plaintiff for the purposes of filing oppositions in respect of certain trade mark applications in India. The said

2 oppositions were to be filed by the plaintiff in respect of the trade marks of the defendant No.1. It is also pertinent to note that initially the plaintiffs' services had been engaged on behalf of Dunlop Slazenger Group Limited. The latter company was acquired by the defendant No.1 in Mr Mike Ashley, who is sought to be summoned as one of the witnesses, is the sole shareholder of the said defendant No.1 company. It is pointed out by counsel appearing on both sides that initially, the plaintiff had been engaged by the Dunlop Slazenger Group Limited. Subsequently, on the acquisition by the defendant No.1, the plaintiff was dealt with, on behalf of the defendant No.1, by defendant No.6. The arrangement was terminated by the defendant No.6 sometime in June, 2006 and another firm of lawyers was appointed to represent the interests of the defendant No.1. The said termination and appointment of the fresh set of attorneys was done by defendant No.6 acting for on behalf of the defendant No These are the background facts. Mr Amitabha Sen, who is the plaintiff and has appeared in person, submits that there is no bar to calling any person as a witness so as to bring out the truth in the case. He referred to various decisions. The first decision referred to by him was the case of Sardar Gurbakhsh Singh v. Gurdial Singh and another: AIR 1927 Privy Council 230. This case was referred to by him to highlight the fact that some times a party adopts a manoeuvre whereby the party does not call essential witnesses but endeavours to force the other party to call them and so suffer the discomfiture of having them treated as their witnesses. He submitted that in this decision, the Privy Council has deprecated such a practice. He submitted that the defendants were adopting such a procedure and manoeuvre by not calling Mr Mike Ashley and Peter Barnes as their witnesses. Insofar as Mr Justin Barnes is concerned, he has been cited as a witness on behalf of the defendants and, therefore, this application insofar as Mr Justin Barnes is concerned, does not survive. The plaintiff would have the right to cross-examine the said witness. 4. The next decision referred to by Dr Sen was Salem Advocate Bar Association, T.N. v. Union of India: (2003) 1 Supreme Court Cases 49. The following passage was referred to. 17. In Order 18, Rule 4 has been substituted and sub-rule (1) provides that in every case examination-in-chief of the witnesses shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence. It was contended by Mr Vaidyanathan that it may not be possible for the party calling the witness to compel the witness to file an affidavit. It often happens that the witness may not be under the control of the party who wants to rely upon his evidence and that witness may have to be summoned through court. Order 16 Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in court for recording their evidence. Rule 1-A, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence

3 or to produce documents. Reading the provisions of Order 16 and Order 18 together, it appears to us that Order 18 Rule 4 (1) will necessarily apply to a case contemplated by Order 16 Rule 1-A i.e. where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any documents. In such a case, examination-in-chief is not to be recorded in court but shall be in the form of an affidavit. 5. Dr Sen then relied upon the decision of a learned single Judge of the Gujarat High Court in Pushpaben Champaklal Shah and Another v. Rikhavdev Tirthram Sharma and Others: AIR 2006 Gujarat 66, wherein it was observed that there is no express prohibition in examining other side as witness. It was also observed in this decision that both the parties can examine such contesting party or witness. It must also be pointed out that in this very decision it is also indicated that an application for summoning such a witness should not be granted as a matter of course but at the appropriate stage the Court can pass such an order keeping the facts of the case and the conduct of the contesting parties in mind. 6. In Sri Awadh Kishore Singh and Another v. Sri Brij Bihari Singh and Others: AIR 1993 Patna 122, another decision relied upon by Dr Sen, a Division Bench of the Patna High Court observed that no provision could be brought to their notice on behalf of any of the parties to show that a party is debarred from examining its adversary as a witness on his behalf. The Court observed that a plaintiff can examine any witness he so likes the witness may be a stranger may be a man of his own party or the party himself or may be a defendant or his man. Therefore, if a plaintiff wants to examine a defendant as a witness on his behalf, he cannot be precluded from examining him on the ground that the said defendant has neither appeared in the suit nor, upon appearance, filed a written statement. In V.K. Periasamy alias Perianna Gounder v. D. Rajan: AIR 2001 Madras 410, a learned Single Judge of the Madras High Court observed that there was no bar on the right of a party to summon another party to give evidence as a witness. The learned Judge was of the view that if there existed such a bar then the provision of Order 16 Rule 21 would not have found place in the Code. It was observed that the inclusion of this provision itself shows that there may be situations where a party may be called upon by another to give evidence as the latter's witness. 7. Dr Sen then relied upon the decision of a learned Single Judge in the case of Syed Yasin v. Syed Shaha Mohd. Hussain: AIR 1967 Mysore 37, wherein it was observed that a close examination of the provisions of Order 16 of the Code leads to the conclusion that one party can apply for the examination of the other party as a witness. It was also noted that was no restriction in the Order 16 Rule 1 CPC against that and that if the intention of the Legislature was to prohibit the examination of one party by the other as his witness it would have stated so. It is also significant to note that in the very same decision it has also been observed that

4 there was nothing on record to show that the application of the petitioner was not bona fide or that it was vexatious or that it was an abuse of the process of the Court. It was categorically noted that though the party has a right to summon the other party to the suit and examine him as a witness, it was open for the Court, if it came to the conclusion that the said application was an abuse of the process of the Court, to disallow such an application. 8. Dr Sen also place reliance on paragraph 32 of the decision in Salem Advocate Bar Association T.N. v. Union of India: (2005) 6 SCC 344. The said passage reads as under: 32. Order 18 Rule 2 (4) which was inserted by Act 104 of 1976 has been omitted by Act 46 of Under the said rule, the court could direct or permit any party, to examine any party or any witness at any stage. The effect of deletion is the restoration of the status quo ante. This means that law that was prevalent prior to the 1976 amendment, would govern. The principles as noticed hereinbefore in regard to deletion of Order 18 Rule 17 (a) would apply to the deletion of this provision as well. Even prior to the insertion of Order 18 Rule 2 (4), such a permission could be granted by the court in its discretion. The provision was inserted in 1976 by way of caution. The omission of Order 18 Rule 2 (4) by the 1999 amendment does not take away the court's inherent power to call for any witness at any stage either suo motu or on the prayer of a party invoking the inherent powers of the court. 9. He then submitted that the best evidence should be made available to the Court so as to prove the facts or the points in issue. For this proposition, he placed reliance on the decision of the Supreme Court in the case of Mohanlal Shamjisoni v. Union of India and Another: 1991 Supp (1) SCC 271. The exact passage relied upon by Dr Sen was as under:- 10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless it either of the parties withholds any evidence which could be produced and which, if produced be unfavorable to the party withholding such evidence, the court can draw a presumption under Illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice

5 10. Finally, Dr Sen referred to the decision of the Supreme Court in the case of Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd. And Others: (2005) 2 SCC 217. The portions relied upon by him read as under:- 11. Dr. Singhvi, learned senior counsel appearing for the respondent-bank vehemently contended that the appellants did not grace the box to lead evidence but authorised Mr. V.R. Bhojwani (power of attorney holder) to appear on behalf of the appellants. Learned counsel contended that Mr. Bhojwani was not an independent person to the litigation but was a judgment debtor in the suit and a co-owner of the property and there was a clash of interest between the husband and wife and as such he could not have been permitted to grace the box on behalf of the appellants. He further contended that under Order III Rules 1 and 2 CPC a power of attorney holder can appear, apply or act in any court but such act cannot be extended to depose in the witness box. He further submitted that in the present case a power of attorney holder is not acting as a witness on behalf of the principal but he is representing the principal himself. He further contended that deposing in a witness box and being cross- examined is a personal act and cannot be done through an agent/power of attorney holder. 12. In the context of the directions given by this Court, shifting the burden of proving on to the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross- examined on those facts which are to the personal knowledge of the principal. 11. Mr Rajiv Nayyar, the learned senior counsel appearing on behalf of the defendants 1 to 6, submitted that the dealings of the plaintiff have been with the defendant No.6. The defendant No.3 was an agency of the defendant No. 6. Mr Justin Barnes (defendant No.2) was the CEO of the defendant No.3 as also the partner in defendant No.6. Defendant No. 5 was the accounts manager of Defendant No.6 and Mr Peter Barnes (defendant No.4), apart from being Mr Justin Barnes' father, was also a partner in defendant No. 6. He submitted that the defendants 2 to 6 are virtually the same entity and it is this entity which has collectively and severally dealt with the plaintiff. The services of defendant No.6 had been engaged by the defendant No.1 and in turn the defendant No. 6 had dealings with the plaintiff. He submitted that there were no direct dealings between the plaintiff and the defendant No.1 or, more particularly, Mr Mike Ashley, who was the sole shareholder of defendant No.1. The four s on the basis of which the plaintiff makes all his submissions, with regard to the involvement of

6 Mr Mike Ashley, were all post termination. He further submitted that the payment for the services rendered by the plaintiff for the period prior to termination were all made by the defendant No.6. The invoices for that period were also raised by defendant No.6. The files were also handed over by the plaintiff to the newly appointed attorneys on the instructions of defendant No. 6 and the payment equivalent to U.S. $ was also made to the plaintiff through the newly appointed attorneys (M/s Anand and Anand). According to Mr Nayyar, the money had been placed at the hands of M/s Anand and Anand for transfer under instructions from defendant No Mr Nayyar, on the basis of the aforesaid submissions, stated that the application was mala fide, it was vexatious and was an abuse of the process of Court. He submitted that the sole objective behind calling Mr Mike Ashley as a witness was to cause harassment to him. He submits that whatever is known to defendants 2 to 6 shall be stated by Mr Justin Barnes, who has already cited as a witness. Insofar as Mr Mike Ashley is concerned, he had no direct dealing with the plaintiff and, therefore, his deposition is not at all necessary for the purpose of arriving at the truth. He referred to a few decisions. The first decision referred to by Mr Nayyar was the case of Union of India v. M/s Orient Engg. and Commercial Co. Ltd.: (1978) 1 SCC 10, wherein, in the context of summoning of certain arbitrators, the Supreme Court observed:- It is not right that every one who is included in the witness list is automatically summoned; but the true rule is that, if grounds are made out for summoning a witness he will be called; not if the demand is belated, vexatious or frivolous. Thus the court also has not approached the question from the proper perspective. The next decision referred to by Mr Nayyar was that of a learned Single Judge of the Bombay High Court in the case of Pirgonda Hongonda v. Vishwanath Ganesh and Others: AIR 1956 Bombay 251, wherein the learned Judge had noted and observed that there has been a practice in some of the Courts in India of calling the party's opponent as a witness and they have observed that this practice is highly objectionable. The Court observed that normally a party to the suit is expected to step into the witness box in support of his own case and if the party does not appear in the witness box it would be open to the trial Court to draw an inference against him. It was further observed that if a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons. Mr Nayyar, thereafter, referred to the decision of the Madras High Court in the case of Union Bank of India v. Muthiah: (1999) 1 MLJ 679, wherein the Court observed that it has been repeatedly held by various courts that the practice of summoning an opposite party as a witness has to be deprecated. Lastly, Mr Nayyar referred to another decision of the Madras High Court in the case of Sri Aurobindo Ashram Trust and another v Kamal Dora: AIR 2000 Madras 494, wherein the Court summarised the legal position in the following words: 9. So, the legal position is that a party who seeks for a prayer to the Court to issue summons to a witness,

7 must reveal to the Court the purpose for which the witness is proposed to be summoned. Once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in cases where objections are raised, the bona fides of the request has to be looked into and appropriate orders passed. 13. After having considered the arguments advanced by the counsel for the parties and having examined the decisions cited by them, it is abundantly clear that while there is no bar to a party seeking the summoning of another party in the same suit as his witness, it is also clear that such an act is unusual and that it should only be permitted if the application for summoning the opposite party is bona fide and is not vexatious or an abuse of the process of the Court. Apart from this, there is the standard question which the Court has to consider in the case of summoning any witness as to whether it is necessary to summon the witness for which the application has been moved. Order 16 Rule 1 (2) CPC clearly stipulates that the 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. This in itself indicates that it is not as if the Court has to allow every application for summoning of a witness. The party seeking the summoning of a person as a witness has to specifically indicate the purpose for which he or she is proposed to be summoned. It is obvious that the Court has to apply its mind and exercise discretion in a judicial manner. 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 witness 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 take 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

8 and the other associated defendants, being defendants 2 to 5. It is clear that summoning by an opposite 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. 16. Thus, both on the point of propriety as well as on the point of standard criteria for summoning of a witness, I am not in agreement with the submissions of the plaintiff and this application is, accordingly, rejected. Sd/- BADAR DURREZ AHMED (JUDGE)