Vidya Sagar Bansal vs Lashkari Mal

Sukhdev Singh Kang, J.—Exparte decree for recovery of some many had been passed against Vidya Sagar petitioner on 13th March, 1970. The petitioner had not been served. Service was deemed to have been effected on him because an insertion had been made under orders of the Court in the newspaper. The petitioner filed an application under Order 9 Rule 13 of the CPC for setting aside the Ex parte decree on 22nd November, 1972 on the plea that he had not been served in the suit and he did not know about the proceedings. The first time he came to know of the passing of the decree against him on 24th October, 1972 when he received a notice of the execution proceedings. The application was opposed by the respondent decree-holder. The trial Court framed three issues on 27th of January, 1973. The case was fixed for the petitioner''s evidence on 17th March, 1973. The petitioner deposited the process fee, diet money etc. for summoning four witnesses. One of them belonged to Delhi and two of them to Chandigarh, one was a Clerk of this Court and the other was Mr. Sri Chand Goyal, Advocate. On 17th of March 1973, one witness produced by the applicant petitioner was examined. The witnesses were ordered to be summoned for 21st April, 1973. On that day, the presiding officer was transferred and his successor had not taken charge. So the case was adjourned to 5th May, 1973 for proper orders. On 5th May, 1973, the Court ordered that the witnesses of the judgment-debtor be summoned on old diet money and fresh process fee for 6th June, 19/3. On 6th June, 1973, the Court ordered that the witnesses had not been served nor had the summons been received back. Fresh summons were ordered to be issued on old diet money and process fee for 4th of August, 1973. On that day also none of the witnesses appeared and in fact the summons were also not received back. However the learned Judge ordered that "the judgment-debtor is made responsible for service after taking summons". The case was adjourned to 14th September, 1973. On that day also, the summons were not received back and the judgment debtor was directed to get the witnesses served after taking Dasti summons. The case was adjourned to 3rd November, 1973. The presiding officer was not present on 3rd November, 1973 and the case was adjourned to 9th November, 1973. On that day, the learned Judge ordered that the witnesses be summoned on old diet money and fresh process fee. A direction was issued that the judgment debtor should get his witnesses served after getting Dasti summons. The case was adjourned to 15th of December, 1973 There is an endorsement showing the summons issued had not been received back. On 15th December, 1973 no witness turned up and the Judge ordered that neither the witnesses have turned up nor the summons have been received back after service. On the request of the learned counsel, last opportunity was given to serve the witnesses on payment of Rs. 50/- as costs. The Judgment Debtor was made responsible for bringing his evidence on the next date which was fixed as 1st February, 1974. It seems that the Judgment Debtor took Dasti Summons and gave them in the Court of the Senior Subordinate Judge, Chandigarh, on 30th January, 1974. The Clerk of the High Court refused to receive the summons direct and wanted to he served through the Registrar. Service of the summons was effected on Mr. Sri Chand Goyal, Advocate, but he stated that he had to go out on 1st February, 1974. Another adjournment was granted on payment of Rs. 40/- as costs. The case was ordered to come up on 16th March, 1974. The witnesses were not served on this date. The summons were also not received back. It is also mentioned in the order that the Judgment Debtor took the Dasti summon at a late stage. He, therefore, ordered the closing of the evidence of the Judgment Debtor and dismissed the application for setting aside exparte decree on that very day. Dissatisfied with this order, the petitioner has filed this revision petition.

It is clear from the resume of the interim other orders given above that the petitioner sought the assistance of the Court for summoning the witnesses on the very first day. Three of the witnesses belonged to Chandigarh and of them was residing at Delhi. The Clerk of the High Court had been asked to bring certain official records of the High Court. The petitioner had been complying with the orders of the Court. On all occasions he took the summons and delivered them to the Senior Subordinate Judge, Chandigarh. On one occasion the process server was able to contact both the witnesses at Chandigarh. Mr. Sri Chand Goyal Advocate had been served and the Clerk of the High Court wanted that service should be effected on him through the Registrar. In these circumstances, it cannot be said that the petitioner was in any way remiss in duty. There is no provision in law which authorises a Court to fix responsibility of service of summons on a party The Court has discretion not to summon a witness whose evidence is not relevant or who is being sought to be examined just to delay the proceedings. In the present case the Court has not come to any such conclusion and has in fact ordered the summoning of the witnesses. In a similar situation, R.S. Sarkaria, J. (as his Lordship then was) in Balwant Singh Bhagwan Singh and Another Vs. Raj Singh Baldev Kishen, has held:

Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper justice. As a general rule, evidence would never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process-fee arises from negligent or carelessness. However negligent or careless have been the first omission to give evidence or to deposit process-fee, it should be allowed if that can be done without in justice to the other side. There is no injustice if the other side can be compensated by costs.

This view was reiterated in Abchal Singh and another v. Hukam Singh 1973 R.L.R. 532 in the following terms:-

The direction given by the trial Court to the defendant to take dasti summonses of the four witnesses mentioned in the application is illegal and is not warranted by any provisions of law. Moreover, in the instant case, the application was made to Government servants and it was not possible for Ranjodh Kaur defendant No. 4 to take Dasti summonses and accompany the process server to effect service on them.

Respectfully following these two decisions, I hold that the petitioner could not be made responsible for effecting service on the witnesses sought to be examined by him. The learned trial Judge has committed material irregularity in the exercise of his jurisdiction in closing the evidence of the petitioner. This order has caused manifest injustice to the petitioner, for his application for setting aside exparte decree has b en dismissed because the petitioner did not lead any evidence.

I, therefore, allow this revision petition set aside the order, dated 16th March, 1974 passed by the trial Court and direct that the trial Court will provide ample opportunity to the petitioner to examine the witnesses already cited by him and assist him in procuring their presence in accordance with law. In view of the peculiar circumstances of the case, there shall be no order as to costs. The parties, through their counsel are directed to appear before the trial Court on September 19, 1980.