Sri Aurobindo Ashram Trust Pondicherry and another vs Kamal Dora

The respondents in I.A.No.4706 of 1999 who are the defendants in the suit O.S.No.37 of 1998 on the file of the III Additional District Munsif

Court, Pondicherry are the petitioners herein.

The respondent herein/plaintiff filed a suit in O.S. No.37 of 1998 on the file of the Principal District Munsif, Pondicherry praying the Court to

grant a decree declaring that the show cause-cum-charge sheet letter dated 6.1.1998 issued against the plaintiff by the defendants is unlawful,

illegal and hence void ab initio and for various other reliefs.

In September, 1999, the respondent took out two applications viz., I.A.Nos.4705 and 4706 of 1999. The first one is to condone the delay in

filing the list mentioned documents and receive the same. The second one is to condone the delay in filing the list of witnesses to be examined.

In the affidavit filed in support of the application in I.A.No.4706 of 1999 it is stated that since the witnesses had to be contacted and their

consent to come to the Court and give evidence had to be ascertained, he was not able to disclose the names of the witnesses in time and hence

the delay occurred.

The petitioners resisted the application contending that the respondent has taken out the said application only to harass, irritate and abuse the

process of law and unnecessarily waste the precious time of the Honourable Court and that the long list of witnesses is mentioned without any

relevance or bearing on the facts of the case. It is also pointed out that as per law, the respondent is required to explain the purpose, relevance and

the scope of examination of each of the witnesses to the satisfaction of the Court.

The learned District Munsif passed an order on this application on 21.9.1999 allowing the said application. In the said order the learned District

Munsif came to the conclusion that there could be no justification for rejecting the relief of condoning the delay in filing the list of witnesses as it

would not cause prejudice to the respondent; further the petitioners/defendants will have an opportunity to cross-examine the witnesses. It also

appears that after passing that order the learned District Munsif passed orders for issuance of summons to all the witnesses and called upon all of

them to appear on 7.10.1999. As against the order of the learned District Munsif, this petition has been filed.

The learned counsel appearing for the petitioners would contend that the prayer in I.A.No.4706 of 1999 is only to condone the delay and

receive the list of witnesses mentioned in the petition and there is no request in the application, to issue summons. Even assuming that the

respondent has made out a case for condoning the delay, the learned District Munsif has erred in ordering issuance of summons to all the witnesses

viz., 23 in number, without complying the mandatory requirement of Order 16, Rule 1 and 2 viz., without calling upon the respondent to indicate

for what purpose he wants to examine those witnesses.

Order 16, Rule 1 and 2 read thus,

List of witnesses and summons to witnesses.- (1) On or before such date as the Court may appoint, and not later than fifteen days after date

on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce

documents and obtain summons to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for

which the witness is proposed to be summoned. (Italics supplied)

The Supreme Court had an occasion to consider the provision i.e. Order 16, Rule 1 and 2 in Mange Ram Vs. Brij Mohan and Others, of the

Judgment read as under,

Sub-rule (1) of Rule 1 of Order 16 casts an obligation on every party to a proceeding to present a list of witnesses who it proposed to call

either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. Sub-rule (2) requires that the

parties seeking the assistance of the Court for procuring the attendance of a witness must make an application stating therein the purpose for which

the witness is proposed to be summoned Sub-rule (3)

...... ....... ......

If the requirement of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well

as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose

attendance the party needs the assistance of the Court. When a summon is issued by the Court for procuring the presence of a witness, it has

certain consequences in law. If the summon is served and the person served fails to comply with the same, certain consequences in law ensue as

provided in Rule 10 of Order 16. The consequence is that where- the witness summoned either to give evidence or to produce the documents fails

to attend or to produce the documents in compliance with such summons, the Court on being satisfied of the service as provided therein and is

further satisfied that the person has without lawful excuse failed to honour the summons, the Court may issue a proclamation requiring him to attend

to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed in the

manner therein provided. Simultaneously, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person,

and may make an order for the attachment of his property for such amount as it thinks fit. Even if thereafter the witness fails to appear, the Court

may impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of

the case, and may order his property, or any part thereof, to be attached and sold as provided in Rule 12 of Order 16. In view of the legal

consequence ensuing from the issuance of a summon by the Court and failure to comply with the same, the scheme of Rules 1, 1A of Order 16

and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to examine

and procure presence with the assistance of the Court....

Rule 1A of Order 16 clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court

to procure presence of a witness on being summoned through tile Court, it is obligatory on the party to file the list with the gist of evidence of

witness in the Court as directed by sub-rule (i) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But, where the party

would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of Order 16 irrespective of the fact

whether the name of such witness is mentioned in the list or not.

In Veerabadran Chetty and others v. Nataraja Desika, I.L.R (28) Mad.28 wherein the Division Bench of this Court held thus,

Where, instead of waiting for an availing himself of this natural opportunity and leaving the Court to draw an inference adverse to one who fails so

to appear and support his own case, an attempt is made to insist on the opponent appearing in Court, it is but reasonable to scrutinise the grounds

of such an attempt and the opposition thereto. Viewing this case with reference to these considerations it is pretty clear that the appellant''s

application is not bona fide. It is well known that persons in the position of the respondent consider it derogatory to be examined in Court as

witnesses and when such persons happen to be men worthily filing the position of the heads of mutts, their attendance as witnesses in Court is

highly distasteful to their disciples and co-religionists. Consequently, the suggestion on behalf of the respondent that his attendance in Court is

required not for the purpose of obtaining any material evidence in the case, but from other and indirect motives which, if disclosed, would result in

the dismissal of the application, is not altogether improbable. Had, however, the appellants been able to satisfy the Court that the respondent is

personally aware of any facts or circumstances which would really help their case, the respondent ought, no doubt, to be compelled to appear

however inconvenient and disagreeable to him such appearance may be. The appellants, however, have failed to show anything of the kind, judging

from the affidavits filed on their behalf. I would, therefore, dismiss the appeal on this ground with costs.

So, the legal position is that a party who seeks for a prayer to the Court to issue summons to a witness, must reveal to the Court the purpose for

which the witness is proposed to be summoned. Once such an application is filed, it is for the Court to use its discretion and to decide whether

summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in

cases where objections are raised, the bona fides of the request has to be looked into and appropriate orders passed.

But, in this case, as rightly pointed out by the learned counsel for the petitioners, after disposing of the application on 21.9.1999, the learned

District Munsif, proceeded to pass an order directing the issuance of summons to all the witnesses to appear on 7.10.1999. From the list of

witnesses, it can be noted that the respondent desires to examine the 2nd petitioner and also the counsel for the petitioners. According to the

petitioners, the respondent''s desire is to irritate and harass the petitioners. This objection of the petitioners has to be considered by the Court and

the bona fides have to be ascertained before issuing summons to them.

In this view of the matter, the order of the learned District Munsif directing issuance of summons to all the witnesses is contrary to law.

In the result, the order of the learned District Munsif dated 21.9.1999 directing issuance of summons to all the witnesses mentioned in the

petition filed along with I.A.No.4706 of 1999 in O.S.No.37 of 1999 is hereby set aside. The revision petition is allowed.