Nemichand vs Raghuwardayal

Khan J.

This revision is directed against the following order dated 26-9-57:--

From the above order, it appears that the trial Court stopped the defendant from examining his witnesses on the ground that inspite of orders given to him to have the summons served on his witnesses by means of personal identification, the defendant has failed to do so. But from the report of the process-server dated 25-9-57, it appears that the defendant went with the process-server for getting the summons served but the witnesses were not found at home and were said to have gone out. In these circumstances it is contended that the Court was not justified in saying that the defendant did not make any effort to get the witnesses served,

It appears from the order of the Court dated 21-8-57 that it was the office of the Court that was at fault in not issuing summons at the proper time. The Court in its order said

This shows that the learned presiding Judge is not properly controlling his subordinate clerks which is, in the main, responsible for the delay. In Part I, Chapter 7, page 45 of the Madhya Pradesh Rules and Orders for the Guidance of the Civil Courts, it has been stated that "an appreciable improvement in the matter of unnecessary adjournments of cases is possible of the Courts instead of merely adjourning cases for non-service and late service, take an intelligent interest in the work and, by properly scrutinizing the registers of the process-writer and Nazir, the work-tickets and the report themselves, find out whether the default is due to the negligence or deliberate intention of the parties or to the negligence of clerks or process-servers. In either case suitable action should be at once taken to deal with these malpractices so as to prevent their recurrence" This passage, I should like to command to the notice of the presiding Judge,

In the instant case, the defendant appears to have accompanied the process-server. In fact, it is the duty of a process-server to serve the summons. My learned brother Dixit J. in Roshansingh vs. Chironjilal ( 1952 M.B L.J 78) has observed that there is no provision in the CPC casting any obligation on the parties to accompany the process-server for having the summons served on their witnesses. It is the duty of the process-server to serve the summons and if he fails to do so, parties cannot be punished for his negligence. While I appreciate the enthusiasm of the learned judge expedite the proceedings, yet I must remind him that the right given to the parties under Order 16 Rule 1, Civil Procedure Code, is a valuable right. When a party applies for summons under Order 16 Rule 1, it is the duty of the Court to see that every effort is made to have the summons served. The learned Judge in his order under revision has said

But I find no provision in the CPC to support such an order. I am of the opinion that in summoning witnesses, the Court must strictly follow the provisions of Order 16 Civil Procedure Code. But I find that the Court had not done so.

The learned counsel for the opposite side, Mr. Motilal Gupta, has not in any way tried to support the order of the Court under revision. His only submission is that the case does not call for an interference u/s 115 of the Civil Procedure Code. But as I have pointed earlier, the Court had not followed the procedure laid clown in CPC and has therefore acted with material irregularity, necessitating interference under the visitatorial jurisdiction of the High Court.

For reasons, stated above, the order of the trial Court dated 26-9-57 is set aside and the Court is directed to summon the witnesses of the defendant according to law and to proceed in the case according to the provisions laid down in the Civil Procedure Code. Partis shall bear their own costs.