Raghunath Pershad died by LRs. and another vs Janaki Bai and others

This revision arises out of the order dated 22-2-1999 in IA 80 of 1999 in OS 803 of 1991 on the file of the Court of XIX Junior Civil Judge, City Civil Court, refusing to issue summons to two witnesses, who are party-defendants in the suit.

The revision petitioner filed the suit seeking a direction for defendants to deliver certain articles, and filed IA 80 of 1999 in the said suit requesting the Court to issue summons to six witnesses giving reasons for citing them as witnesses. The said application was opposed by the respondents on the ground that some of the witnesses, who are cited therein, are parties to the suit and so, no summons can be issued to them. The learned Junior Civil Judge allowed the petition in respect of witnesses 1 to 3 and 5 cited, and refused to issue summons to witnesses 4 and 6 mentioned in the petition because they are defendants in the suit, on the ground that the Counsel for the revision petitioner did not show any decision that the plaintiff can summon the opposite party as a witness. Aggrieved thereby, this revision is filed.

Rule 21 of Order 16 CPC, as amended by Madras High Court, which is adopted by this High Court also, reads as follows:

"(1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.

(2) When a party to a suit gives evidence on his own behalf, the Court may in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing."

The learned Counsel for the revision petitioner relying on Syed Yasin v. Syed Mohd. Hussain, AIR 1967 Mys 37, contended that the Court has ample power to issue summons to the opposite party to give evidence as a witness, and so the trial Court was in error in refusing to issue summons to witnesses 4 and 6 mentioned in the petition. The contention of the learned Counsel for the 1st respondent is that this is a second round of litigation to harass the 1st respondent and for the revision petitioner has filed the petition only to drag on the proceedings for as long time as possible and, so the trial Court rightly dismissed the petition.

The point to be decided in this petition is only whether a party to the suit can seek summons being issued to the opposite party to give evidence on his behalf or not. It is not necessary to go into the merits of the case to decide this petition. Since Rule 21 of Order 16 CPC empowers one party to call the other party as a witness, the trial Court was in error in refusing to issue summons to the proposed witnesses 4 and 6 mentioned in the petition only on the ground that no decisions are cited before it to show that a party can take out written summons to the other side. In view of Rule 21 of Order 16 CPC no ruling is necessary for deciding the point in issue. The decision Syed Yasin v. Syed Mohd. Hussain, (supra), relied on by the learned Counsel for revision petitioner supports the contention of the revision petitioner that other party can be summoned to give evidence.

In the result, the revision petition is allowed. The trial Court is directed to issue summons to the proposed witnesses 4 and 6 mentioned by the petitioner in IA 80 of 1999 also. Parties are directed to bear their own costs in this revision.