Suresh Nath Modi vs LR's of Jorawarmal

Amaresh Ku. Singh, J.—Heard the learned counsel for the petitioner and the learned counsel for the non-petitioners.

In the instant case, the petition is admitted.

A short question arising in this petition is whether the learned lower Court was justified in closing the evidence of the petitioner-plaintiff when some of the witnesses against whom summons and warrants had been issued, did nut appear in the Court on the date of hearing fixed for their evidence.

A perusal of the certified copy of the order-sheet dated 17-1-1998 shows that the suit was listed on 12-7-1997 for the evidence of the plaintiff. On 12-7-1997, the statement of Surendra Nath DW-1 remained incomplete as the original agreement was not available. On 31-1-1997, the case was adjourned at the instance of the counsel for the plaintiff. On 14-8-1997, the statement of the plaintiff could not be completed because the Court time was over. On 30-8-1997, adjournment was sought on behalf of the plaintiff and the same was granted and the case was listed on 6-9-1997. On 6-9-1997, Surendra Nath DW-1 was examined but his statement remained incomplete. On the same day, the statement of DW-2 was recorded. On 10-9-1997, the witnesses of the plaintiff were not present and the case was adjourned to 13-9-1997. On 13-9-1997 also, the plaintiff s witnesses did not appear. On that day, the statements recorded by the Commissioner were produced in Court. According to the order-sheet dated 25-10-1997, after recording the statement of Ramdeen and Surendra Nath, summons and warrants were ordered to be issued for the appearance of the remaining witnesses. On 13-11-1997, bailable warrant of arrest were ordered to be issued to enforce the attendance of the witnesses and summons were ordered to be issued to enforce the appearance of the witnesses. On the subsequent dates of hearing, the Presiding Officer of the Court was on leave. On 8-1-1998, Khemraj and Surendra Nath were examined. An opportunity was given to the plaintiff to produce his witnesses himself. On that day, the learned counsel for the plaintiff did not move any application for issue of summons or warrants against any witness. On 17-1-1998, the witnesses for the plaintiff were not present and the learned District Judge rejected the prayer made by the learned counsel for the plaintiff for issue of warrants of arrest and summons.

The learned counsel for the petitioner has submitted that when the learned District Judge had. issued warrants of arrest and summons to enforce the attendance of the petitioner''s witnesses, it was necessary that fresh summons and warrants of arrest should have been issued when some of the witnesses did not appear on the date of hearing fixed by the Court for recording the evidence. It is further submitted by him that the plaintiff s evidence ought not to have been closed on 17-1-1998 in view of the facts and circumstances mentioned above.

The learned counsel for the non-petitioners has submitted that when the Court directed on 8-1-1998 that the plaintiff should have produced his witnesses, as it was necessary for the plaintiff to have produced his witnesses and since this was not done, learned District Judge was justified in closing the evidence of the plaintiff and this revision petition is not maintainable.

I have carefully considered the submissions made by the counsel for both the parties and the facts and circumstances of the case. Order 16 Rule 10 CPC prescribes the procedures to be followed if the witnesses fails to appear. Sub-rule (2) of Rule 10 of Order 16 reads :--

"Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it 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 on the outer door or other conspicuous part of the house in which he ordinarily resides."

Sub-rule (3) of Rule 10 of Order 16 reads :

"In lieu of or at the time of issuing such proclamation, or at any time afterwards, 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 to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12 :

Provided that no Court of Small Causes shall make an order for the attachment of immovable property."

A bare perusal of Rule 10 of Order 16 CPC shows that in the event of non-appearance by a witness in spite of the service of summons on him, the Court is empowered to issue a proclama-tion as well as issue a warrant of arrest to compel the attendance of the witness. It is true that the party desirous to obtain the assistance of the Court in enforcing the attendance of the witnesses, is required to make a request to the Court and take all necessary steps by complying the orders by Court, but where a party has already moved to the Court for issuing summons or warrants to compel the appearance and such prayer has been allowed by the Court; it is the duty of the Court to find out whether the process issued by it has or has not been duly served and if duly served, whether further action as provided in Order 16 Rule 10 CPC should be taken in the case. A similar question was considered by the learned single Judge of this Court in Smt. Uchhabkanwar and Another Vs. Legal Representatives of Ramswaroop and Others, In that case at pages 210 and 211 :--

"A conjoint reading of Sub-section (b) of Section 30 and Section 32 of the Code of Civil-Procedure leads towards an irresistible conclusion that once the Court makes up its mind to summon a witness to give evidence, at subsequent stage, such Court cannot express its inability to summon the witness, on the ground that some of the measures to be taken by the Court, as contemplated u/s 32 of the Code are not possible. In my humble opinion, once the Court makes up its mind to summon a witness, he should always be compelled to. attend the Court to give evidence, taking all measures, as contemplated u/s 32 of the Code of Civil Procedure.

In the present case, it is true that the subordi--nate Court has issued non-bailable warrant compelling the attendance of the witness but no step has been taken to attach and sell his property or commit him to the civil prison or to impose fine, up to five hundred rupees. Further in order to maintain confidence of the litigants, a witness who is sought to be adduced before the Court and once the Court, after being satisfied, issued summons for his attendance; the Court should not stay its hands at the choice of the witness to attend or not to attend the Court to give evidence."

I respectfully concur with the view taken by the learned single Judge.

In my considered view, once a party has moved an application for issue of process against a witness and the Court allows such application and issues process to compel the appearance of the witness, it becomes the duty of the Court to see that the process issued by it is duly served and the person for whose appearance the process was issued, does appear in the Court to give evidence or to produce the document as the case may be unless the party agrees on his part process be issued is shown to have committed such negligence in filing process-fee and notices or summons as may fall within the definition of abuse of the process of Court or he (sic) party applying for the summons or warrant were not represents before the Court that it would produce the witness itself or the witness himself appears in the Court or the issue of process against him for any other just cause is rendered unnecessary.

In the instant case, the petitioner did not volunteer to produce the witnesses himself. There is no observation by the learned District Judge that the plaintiff-petitioner abused the process of the Court by not filing the process-fee or summons or that he failed to perform any act which he was required to perform for enforcing the attendance of the witnesses. There is nothing to show that the witnesses themselves undertook to appear in the Court on the next date of hearing or it was rendered unnecessary to take action against the defaulting witnesses under Rule 10 of Order 5 CPC.

In these circumstances, the order dated 17-1-1998 was improper. It deserves to be quashed and is hereby quashed and set aside.

Having regard to the facts and circumstances of the case, it is directed that civil suit shall be taken up on 15-7-1999 for hearing (recording the evidence of the plaintiff). The plaintiff-petitioner shall file necessary PF if any payable by him up to 3-7-1999. The learned District Judge will ensure that necessary process is issued against the defaulting witnesses promptly by his office and the process is duly executed in accordance with law, It is further directed that in the event, the plaintiff fails to furnish necessary process-fee (if any payable by him) within the time fixed by this Court for enforcing the attendance of any witness, then his right to get that particular witness summoned to the Court shall be forfeited.

With the above observations, the revision petition is allowed. A copy of this order be sent to the learned District Judge, Merta without unnecessary delay for compliance.