ORDER :

1. This civil revision petition, under Article 227 of the Constitution of India, is filed by the unsuccessful petitioner-plaintiff assailing the order, dated 21.03.2018, of the learned Principal Junior Civil Judge, Avanigadda, Krishna District, passed in I.A. No. 229 of 2018 in O.S. No. 125 of 2008.

2. Heard Sri P. Prabhakara Rao, learned counsel appearing for the revision petitioner-plaintiff and Sri M. Prasad Rao, learned counsel appearing for the respondents- defendants.

3......

(a) The revision petitioner/plaintiff filed petition under Section 151 of the Code of Civil Procedure, 1908 (‘Code’) to issue bailable warrant to Chalamalasetti Prabhudas S/o Ranga Rao, Nizampet, Hyderabad, and direct the Station House Officer, Kukatpalli Police Station to produce him before the Court, since the witness failed to appear before the Court in response to the summons served upon him.

(b) The 2nd defendant opposed the petition on the ground that the petition is not maintainable under Section 151 of the Code as there is a specific provision under law and this defendant filed a suit in O.S. No. 115 of 2014 on the file of the same Court against Prabhudasu and the 3rd defendant in this suit and that the said suit is pending. The contesting defendant stated that there is collusion between Prabhudasu and the plaintiff. The petition was further resisted on the ground of prolonged litigation of the suit since the year 2018 and that this is one more attempt to drag on the proceedings.

4. The Court below dismissed the petition holding that the petition is not maintainable under Section 151 of the Code since there is a specific provision under Order XVI Rule 10 of the Code, which deals with the procedure where witness fails to appear in compliance of summons served. It is further observed by the trial Court that as per sub-rule (3) of Rule 10 of Order XVI of the Code, when the witness fails to attend in terms of the summons served on him and if the Court feels that non-appearance of summoned witness is without lawful excuse, it may issue proclamation requiring him to attend to give evidence and if even thereafter, the witness does not turn up, the Court may issue warrant either bailable or non-bailable.

5. The point for determination is:

Whether the impugned order suffers from any illegality or irregularity warranting interference by this Court?

POINT:

6. It is settled law that wrong quoting of provision of law is not a ground to decline any relief, if the party is otherwise, entitled to it. Since the relief claimed is covered by Order XVI, Rule 10 of the Code, it is to be examined whether the relief claimed by the petitioner can be granted within the scope of the said provision. For better appreciation, it is apropos to refer to Order XVI Rule 10 of the Code, which is excerpted hereunder:

“10. Procedure whose witness fails to comply with summons:

1. Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court:

(a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent.

(b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.

2. 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 hou