Salima Bhatti vs Khursheeda Begum

S.K. Gupta, J.—I have heard Mr. V.B. Gupta, learned counsel appearing for the petitioner, as well M/s V.R. Wazir and B.S Bali, learned

advocates, for the respondents and also perused the record.

The spinal question that falls for determination in this case is whether a party can be directed to produce the evidence with an pre-emptory order

that in case no witness is produced, her evidence shall stand closed, where the witnesses' expenses and process fee were deposited, but summons

were not issued and also the application of the party to examine himself/herself after his/her witnesses are examined is still pending and objections

from the other side are awaited. Contention of Mr. V.B. Gupta, advocate appearing for petitioner is that, after the completion of the evidence by

the plaintiff/defendant-2, respondents herein, the petitioner was directed to deposit the diet expenses and the process fee of the witnesses within

ten days and thereafter, the summons be issued. These directions seem to have been given by the Trial Court vide its order dated 18.2.2000. The

expenses and process fee of the witnesses came to be deposited on 26.12.2000, His further contention is that instead of issuing the summons to

procure the attendance of the witnesses and before deciding the application of the petitioner-defendant-1 seeking indulgence of the Court for

permission to get herself examined later after the examination of her witnesses in terms of Order 3 Rule A (sic) [1] of CPC, the Court directed the

petitioner to produce the evidence by giving a last opportunity and in case otherwise, her evidence shall stand closed vide order dated 6.10.2001,

which is reproduced in verbiage as under:

Mr. Wazir, advocate appearing for the non-petitioner, however, urged that delay in summoning the witnesses had occasioned entirely due to the

petitioner-defendant-1 and the Trial Court had passed the impugned order only in order to avoid the delay.

On dichotomy of the record, it has been found that after the deposit of the witnesses, expenses and process fee by the petitioner-defendant-1,

summons have not been issued for procuring attendance of the witnesses nor any such summon has been found annexed with the file. According to

the petitioner, the full particulars of the witnesses, who were to be summoned by the Court after the deposit of their expenses and process fee,

have been given. But the Court, instead of securing the attendance of the witnesses for recording their evidence, passed the impugned order

affording last opportunity to produce the witnesses, otherwise the evidence shall stand closed and that too without taking any decision on the

application of petitioner to be examined later after her witnesses are examined.

Procedure for summoning of the witnesses is contemplated in Order 16 of the Code of Civil Procedure. Sub-rule (1) Rule 1 of Order 16

obligates the Court to summon the witnesses and take steps to ensure the presence in case of disobedience by resorting to even coercive measures

where the person summoned and served, and person fails to comply with the same and in that event, legal consequences as provided under Rule

10 Order 16 must follow. This obligation has not been discharged by the Court in this case, before asking the petitioner to produce the witnesses

and affording last opportunity, in case otherwise her evidence would stand closed and that too prior to the decision of her application to be

examined later after her witnesses are examined. The order impugned is, thus, contrary to law necessitating the interference of this Court in the

Revision. So is held by the Apex Court in Mange Ram Vs. Brij Mohan and Others, .

In the result, I allow the petition, set aside the order and direct that the Trial Court shall first decide the application of the petitioner initiated in

terms of Order 18 Rule 3A and thereafter proceed to summon the witnesses as provided under Rule 1 Order 16 of the CPC. Parties through their

counsel to appear in the Trial Court on 8th March, 2002. Record shall be remitted back to the Trial Court forthwith.