Case Note & Summary
The petitioner, Smt. Maqbool, represented by her GPA holder Nazeer Ahmed, filed a writ petition under Article 227 of the Constitution of India challenging the order dated 15.06.2019 passed by the 1st Additional Civil Judge and JMFC, K.G.F., in O.S. No. 100/2009. The impugned order rejected I.A. No. XIV under Order XVI Rules 1, 2 and 6 read with Section 151 CPC and I.A. No. XV under Section 151 CPC, which were filed by the plaintiff (petitioner) to summon witnesses. The suit concerns a property dispute between the petitioner (plaintiff) and the respondent (defendant) over an open common passage. The plaintiff purchased a property measuring 125 feet x 50 feet and constructed 12 shops and a house, leaving an 8-foot open space on the southern side. The respondent's property lies to the south, and there is an 8-foot passage on its northern side, making a combined 16-foot passage used as a common passage. The plaintiff alleged that the respondent attempted to encroach and dispossess her from this passage, leading to the suit. During the trial, the plaintiff sought to summon certain witnesses to prove her case. The Trial Court rejected the applications without considering the relevance of the proposed witnesses to the issues. The High Court found that the Trial Court had not applied its mind to the necessity of the witnesses and had erred in rejecting the applications. The High Court set aside the impugned order and directed the Trial Court to reconsider the applications afresh, after hearing both parties, and to pass appropriate orders in accordance with law. The writ petition was allowed.
Headnote
A) Civil Procedure - Summoning of Witnesses - Order XVI Rules 1, 2 and 6 CPC - The Trial Court rejected the plaintiff's application to summon witnesses without examining the relevance of the witnesses to the issues in the suit - Held that the Court must consider the necessity and relevance of witnesses before rejecting such applications, and the impugned order was set aside with a direction to reconsider (Paras 1-10). B) Constitutional Law - Writ Jurisdiction - Article 227 of Constitution of India - The High Court exercised its supervisory jurisdiction to correct an error of law by the Trial Court in rejecting a summons application without proper application of mind - Held that Article 227 empowers the High Court to ensure subordinate courts act within their jurisdiction and in accordance with law (Paras 1-10).
Issue of Consideration
Whether the Trial Court was justified in rejecting the plaintiff's applications under Order XVI Rules 1, 2 and 6 read with Section 151 CPC for summoning witnesses, without considering the relevance of the proposed witnesses to the issues in the suit.
Final Decision
The writ petition is allowed. The impugned common order dated 15.06.2019 passed by the 1st Addl. Civil Judge and JMFC, K.G.F., in O.S. No. 100/2009 on I.A. No. XIV and I.A. No. XV is set aside. The matter is remitted back to the Trial Court to reconsider the applications afresh, after hearing both parties, and to pass appropriate orders in accordance with law.
Law Points
- Order XVI Rules 1
- 2 and 6 CPC
- Section 151 CPC
- Article 227 of Constitution of India
- Power of superintendence
- Summoning of witnesses
- Rejection of application without considering relevance
- Common passage dispute
