Rakesh Khanna vs Mohini Khanna

Sat Paul Bangarh, J.—Civil Suit No. 300/RT of 17.04.2012 that has been filed by the petitioners against the respondents has been pending in the trial Court, which is for declaration and permanent injunction. During the pendency of this case, the evidence of the petitioners, herein, was closed by order vide order dated 22.11.2013 (Annexure P4). Learned counsel for the petitioners contended that in the order dated 14.10.2013, that was passed by the trial Court, Harcharan Singh and Narender Jham witnesses were served and they were ordered to be summoned through bailable warrants of arrest in the sum of Rs. 5,000/- and a surety in the like amount for the next date i.e. 15.11.2013. He further contended that on the latter date, warrants/notice (wrongly written as notice) issued to Harcharan Singh and Narender Jham of the petitioners were received back unserved. He further contended that in this order dated 15.11.2013, no further date has been mentioned, meaning thereby, that it was not mentioned as to for which date, this suit is being adjourned.

Learned counsel for the petitioners further contended that file was taken up on 22.11.2013 and the evidence of the petitioners was closed by order by holding that since he has availed many opportunities including last opportunity and despite that he failed to bring his evidence, same is, hereby, closed by order.

Aggrieved against this order, the petitioners have come up with this revision with prayer for acceptance, thereof, and for allowing him opportunity to conclude his evidence.

Learned counsel for the petitioners mainly contended that when once warrants of arrest (bailable) had been issued to Harcharan Singh and Narender Jham, that order should have been taken to logical conclusion by the trial Court which implied that these witnesses should have been coerced to appear before the trial Court and the petitioners were not under obligation to produce them and they were simply to pay the warrant fee.

There is merit in the contention raised by the learned counsel for the petitioners.

Notice of this petition need not be given to the respondents, who if felt aggrieved by this order may approach this Court through appropriate petition for recall of this order.

It is candid from the order dated 14.10.2013 that Harcharan Singh and Narender Jham both witnesses of the petitioners were served with the summons and the trial Court received back their summons with the report that those have been served upon them. Albeit service, both these witnesses failed to appear before the trial Court and vide order dated 14.10.2013 (Annexure P2), they were summoned through bailable warrants. When once the bailable warrants had been issued to these witnesses, the evidence of the petitioners could not be closed by order, because he was not to take necessary steps for procuring the presence of these witnesses. Only the trial Court was to coerce them to appear before it for deposition.

When the bailable warrants had been issued by the trial Court, this step of issuance of bailable warrants against the witnesses of the petitioners by the trial Court should have been taken to logical conclusion. These bailable warrants should have been served and if the agency of the trial Court failed to serve the bailable warrants upon the witnesses, then that exercise should have been repeated and under any condition, these witnesses were to be served with bailable warrants. If after service of bailable warrants, these witnesses failed to appear, in that event, the warrants of arrest were required to be issued against these witnesses and for serving them through warrants of arrest, coercive steps should have been taken by the trial Court.

This Court in Mr. Deepak Chadha Vs. Mrs. Rupa Anand and Another, held that in case, it was proved that the bailable warrants were served on the witnesses and they had not chosen to appear in the Court, in that event, it was obligatory on the part of the trial Court to have issued non bailable warrants for their arrest, or should have taken other coercive steps by writing to the Superintendent of Police, concerned or to see, that warrants were executed, but the petitioner could not be made to suffer for the lapse of executing agency, in effecting service. The impugned order, whereby, the evidence of petitioner was closed be set aside and he was granted two adjournments to conclude his evidence with direction to the trial Court to use coercive method for getting the presence of the summoned witnesses in terms of order 16 Rule 10 CPC.

This Court in Mahant Jagmohan Singh Vs. Mahant Karamjit Singh, also took the similar view that when the diet money and the other expenses have been deposited by the petitioner, the Court is duty bound to procure the presence of these witnesses. It was held that the trial Court committed a material irregularity in not compelling the attendance of summoned witnesses. Section 32 gives a right to the trial Court to summon a witness and order 16 Rule 10 and 12 CPC to secure attendance of the witness; the petition was allowed.

So, in this view of the matter, the impugned order suffers from material infirmity and irregularity and that has to be set aside. Resultantly, revision succeeds and is, hereby, allowed with no order as to costs; impugned order of the trial Court, whereby, the evidence of the petitioners was closed is set aside and the trial Court is directed to procure the presence of Harcharan Singh and Narender Jham witnesses by issuing bailable warrants as had been ordered in order dated 14.10.2013 and if these witnesses failed to appear, albeit, service of bailable warrants, then obviously, trial Court shall issue warrants of arrest against them.