Issuance of production warrant when party is in custody, depends on facts of each case and whether party can adduce evidence to prove its case: SC

Read Judgment: M/s Garment Craft V. Prakash Chand Goel

Pankaj Bajpai

New Delhi, January 13, 2022: The Supreme Court has opined that a production warrant should not invariably be issued when a party is in custody, and it would depend upon the facts of each case and whether the party can adduce evidence to prove its case, given the assertion that witness is in custody. 

A Division Bench of Justice Sanjiv Khanna and Justice Bela M. Trivedi observed that the High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. 

Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported, added the Bench.  

Going by the background of the case, in 2011, Prakash Chand Goel (Respondent) filed a civil suit before Delhi High Court for the recovery of Rs.81,24,786.23p against Garment Craft (Appellant), who contested the suit by claiming that the goods were not accepted or returned due to reasons mentioned in debit notes and in fact, the respondent owed Rs.88,785/- to the appellant.

In the course of trial, on September 29, 2015, Shailendra Garg, the sole proprietor of the appellant was arrested by the Rajasthan Police in an unrelated case, and thereafter on October 6, 2015, he was sent to judicial custody and detained in Central Jail, Jaipur. He was later released on bail. It was the appellant’s case that due to the detention, the appellant was prevented from effectively contesting and participating in the civil suit. Consequently, the Joint Registrar, Delhi High Court, directed closure of the defence evidence. 

As Shailendra Garg was incarcerated, the Additional District Judge, (Central), Tis Hazari, Delhi, observed that the counsel for the appellant should have filed an application for issuance of production warrant to enable Shailendra Garg to appear before court. Cost of Rs.5,000/- was imposed and the case was adjourned for recording of defence evidence. Later, an ex-parte judgment was passed, decreeing the suit filed by the respondent in the sum of Rs.81,24,786.23p along with pendente lite interest at the rate of 24 percent per annum and post decree interest at the rate of 18 percent per annum till the realization.

Thereafter, Shailendra Garg was released on bail on May 6, 2017 and within 10 days of his release, he filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside of the ex-parte decree. In particular, it was pleaded that the High Court had failed to issue production warrant for appearance of Shailendra Garg before closing the defence evidence, despite the fact that earlier production warrant had been issued and Constable Jitendra Kumar had appeared seeking clarifications. Upon consideration of the facts, the application under Order IX Rule 13 of the Code was allowed, setting aside the ex-parte decree, restoring it to its original number and listing it for defence evidence. 

After considering the submissions, the Apex Court found that the factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. 

This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence, added the Court. 

Speaking for the Bench, Justice Khanna observed that the discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. 

There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings, added the Bench.  

Accordingly, the Apex Court restored the order passed by the Additional District Judge, (Central), Tis Hazari, Delhi, allowing the application under Order IX Rule 13 of the Code and setting aside the ex-parte decree.