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HIGH COURT OF DELHI
JUDGMENT
M/S SHARONS LINK LOGISTICS ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. Pranav Sapra, Advocate
For the Respondent : Mr. Varun Singh and Mr. Janmejay Pratap Singh, Advocates
1. The petitioner challenges the orders dated 12.03.2018 and 31.05.2018 passed in CS DJ ADJ 99/2016 (16164/2016) titled ‘Sharons Link Logistics vs. UNI Trade Logistics’ whereby the learned Trial Court had permitted the respondent/defendant to cross-examine the summoned witnesses namely PW-2 and PW-3 appearing on behalf of two different banks. [ The proceeding has been conducted through Hybrid mode ]
2. Mr. Pranav Sapra, learned counsel for the petitioner submits that an objection under Section 139 of the Indian Evidence Act, 1872 (in short “Evidence Act”) was raised before the learned Trial Court while the PW-3 Mr. Anupam Kamal, Service Manager, Kotal Mahindra Bank and PW-2 Mr. Manik Vishwakarma, Deputy Manager, ICICI Bank, Vasant Vihar, New Delhi were being examined and cross-examined.
3. Learned counsel submits that the provisions of Section 139 of Evidence Act are very clear, in that, the summoned witnesses from whom the production of documents is sought, are not witnesses as understood in the ordinary parlance and therefore cannot be put to crossexamination by the other side.
4. Learned counsel further submits that the part cross-examination which was conducted by the respondent/defendant at page 22 establishes that the respondent is going beyond the circumscription as stipulated in Section 139 of the Evidence Act. Learned counsel submits that despite the aforesaid objection on this aspect, the learned Trial Court overruled the said objection and permitted the respondent/defendant to crossexamine the aforesaid witnesses beyond the legal stipulation.
5. Learned counsel submits that a plain view of the crossexamination that was conducted, appears to be an attempt to elicit information which was not subject matter either of the suit or even of the record which was brought by the summoned witnesses.
6. Learned counsel for the petitioner/plaintiff also contends that it is an admitted fact that the respondent/defendant did not file their written statement and the right to file written statement was struck off. On that basis learned counsel submits that the scope of the cross-examination in any case was extremely limited.
7. On that basis, learned counsel submits that the impugned order ought to be quashed and set aside.
8. Per Contra, Mr. Varun Singh, learned counsel appearing for the respondent/defendant submits that the entitlement and the right of the respondent/defendant, though the right to file written statement was struck off, cannot be curtailed inasmuch as it is an indelible right available to the defendant to elicit truth from the witnesses who are brought on record by the petitioner/plaintiff.
9. Learned counsel further submits that the purport of Section 139 of Evidence Act could not be to curtail the rights given to parties to ensure that there is a fair trial being conducted.
10. Learned counsel further submits that questions that were being across put to the witnesses were only in respect of the documents that were produced and not beyond those documents.
11. Mr. Singh further submits that it was only to elicit the truth of the contents of the documents itself that further questions were required. On that basis, learned counsel submits that the permission granted by the learned Trial Court in permitting the respondent/defendant to continue with the cross-examination was in accordance with law and no illegality or judicial impropriety has been committed. Learned counsel submits that the impugned orders are sustainable in law.
12. Learned counsel for the respondent/defendant draws attention of this Court to the account opening form of the petitioner firm – M/s. Sharons Link Logistics to submit that the documents filed on record by the respondent, before this Court alongwith the counter affidavit shows that the Proprietor of the Link Logistics is Ms. Madhu Verma, who is stated to be wife of Mr. Manish Verma, who has purportedly shown himself as the Proprietor of the petitioner/plaintiff firm M/s Sharons Link Logistics. Learned counsel submits that it is only to shed the truth on the said disputes which would go a long way to defend himself before the learned Trial Court in terms of law, in that, the suit of the petitioner/plaintiff would itself, fail.
13. Learned counsel also submits that the present petition is not maintainable under Article 227 of the Constitution of India for the reasons that the learned Trial Court has not acted with material irregularity or judicial impropriety.
14. Learned counsel also submits that that witnesses whom the petitioner today, is addressing as summoned witnesses, were already part of the list of witnesses as filed by the petitioner/plaintiff before the learned Trial Court. On that, learned counsel submits, the bar under Article 139 of Evidence Act does not disentitle the respondent/defendant from cross-examining further.
15. This Court has heard the submissions urged by both the counsel as well as perused the documents and impugned orders.
16. At the outset, this Court would address the arguments placed before this Court by learned counsel for the respondent/defendant, in that, the reference to the documents of the account opening form in the name of Ms. Madhu Verma annexed to the reply filed before this Court. This Court is of the considered opinion that once right to file written statement has been struck off by the Trial Court and there is no legal right to file or lead evidence left with the respondent/defendant, the production of the documents in support of his contentions in the counter affidavit to the present petition under Article 227 of the Constitution of India, is a contrivance and a method to overcome the limitation placed upon the respondent/defendant by the right to file written statement being closed by the learned Trial Court.
17. It is undoubted that the respondent/defendant never challenged the order whereby the right to file written statement was closed.
18. Considering the aforesaid, this Court is of the considered opinion that even for the purposes of arguments, the documents annexed alongwith the reply cannot be and shall not be taken into consideration by this Court for any purpose whatsoever.
19. It would be apposite to extract the provisions of Section 139 of the Evidence Act:-
the those witnesses who are purely summoned for the purposes of placing on record documents summoned by that party, the right of the other party is circumscribed and no question of any nature whatsoever can be put across to the said witnesses except those limited to purely formal in nature. However, there is a caution to the aforesaid observation, in that, in all cases that may really not be the situation and the learned Trial court may have to examine the said issue on case to case basis.
20. In the present case, since the right to file written statement was struck off, the fact that the availability of defence itself is limited to the points of law, any permission to continue further with the crossexamination of PW-2 and PW-3 is impermissible in law.
21. This Court has also perused the part cross-examination placed at page 22, which is the impugned order, and has observed that the questions which are being now put appear to be a roving enquiry into the merits of the suit which, in the aforesaid circumstances, is not permissible.
22. In view of the aforesaid, the petition is allowed. The impugned orders are set aside only to the limited extent of further crossexamination that has been permitted by the learned Trial Court. The cross-examination, as already conducted, shall remain.
23. It is made clear that any observations made above in regard to the lis pending between the parties is limited for the purpose of appreciating the present challenge and shall not come in the way of learned Trial Court while deciding the suit finally.
24. With the aforesaid observations, the petition and pending application stands disposed of.
TUSHAR RAO GEDELA, J. FEBRUARY 27, 2023