The Management of M/S Institute of Public Health & Hygine v. Kashi Nath Sharma

Delhi High Court · 03 Nov 2014 · 2014:DHC:5689

Suresh Kait

W.P.(C) 7549/2014

2014:DHC:5689

civil appeal_dismissed Significant

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The Delhi High Court upheld the Tribunal's order summoning witnesses from the opposite party, holding that such summoning is permissible when necessary for justice and not vexatious.

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W.P.(C) 7549/2014
HIGH COURT OF DELHI

JUDGMENT

delivered on:3rd November, 2014

W.P.(C) 7549/2014
THE MANAGEMENT OF M/S INSTITUTE OF PUBLIC HEALTH
& HYGINE ..... Petitioner Represented by: Mr.Nimish Chib, Adv. with
Mr.Shashank Sharma, Adv.

versus

KASHI NATH SHARMA ..... Respondent Represented by: None.

CORAM:

HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
C.M.No.17829/2014 (Exemption)
Exemption allowed subject to all just exception.
The application stands disposed of.

W.P.(C) 7549/2014 & C.M.No.17828/2014 (Stay)

1. Vide the present petition, the petitioner seeks setting aside of the impugned order dated 11.09.2014 passed in LIR/D No.54/2011 passed by learned Tribunal, upon an application moved by the petitioner for recalling of order dated 15.03.2014, whereby the learned Tribunal directed to summon the witnesses. 2014:DHC:5689

2. It is important to note that vide order dated 04.01.2014 on statement of learned ARM, the witnesses namely, Vijay Kumar, Nagnia and Nalini Joshi were dropped. Thereafter the claimant filed an application for summoning of aforesaid witnesses to prove his case.

3. Learned counsel for the petitioner submits that the petitioner has right to examine or not examine any of the witnesses. In that eventuality the learned Trial Court had no power to summon the aforesaid witnesses on the application made by the respondent/workmen. Moreover, said witnesses are not necessary to adjudicate the claim of the respondent.

4. To strengthen his arguments, learned counsel for the petitioner has relied upon the case of Dr.Amitabha Sen v. M/s Sports World International Ltd. & Ors. AIR 2008 Delhi 118 whereby held as under:-

“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 witnesses 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 make 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 and the other associated defendants, being defendants 2 to

5. It is clear that summoning by an opposite side 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.”

5. It cannot be disputed that any of the party is at liberty to examine the witness of his choice but if any of the party wishes to examine any witness to establish its claim, in that eventuality the Tribunals or Courts should examine those witnesses.

6. It is trite that there is no bar to a party seeking summoning of another party as witness, however, it is also clear that summoning of witness should be bona fide and is not vexatious or an abuse of the process of court.

7. In the present case, had the witnesses mentioned above were examined by the petitioner, by cross-examining them the respondent/Workmen would have established its case by proving the length of service. In the absence of said witnesses, it became necessary to examine these witnesses to establish the claim of the Workmen.

8. In view of the above, I find no discrepancy in the order dated 11.09.2014 passed by the Tribunal.

9. Accordingly, the writ petition along with pending application is dismissed with no order as to costs.

SURESH KAIT (JUDGE) NOVEMBER 03, 2014 mr/sb

The Management of M/S Institute of Public Health & Hygine v. Kashi Nath Sharma

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