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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
R.Raghunandan Rao, J.
Pratap Chaganlal - Petitioner
Versus
Vikram Jethalal Joisher – Respondent
Civil Revision Petition No. 143 of 2022
Decided On : 28-01-2022
CIVIL PROCEDURE CODE - ORDER XVI RULES 1, 2, 5, 7A, 10 - SUMMONS TO WITNESS - WITNESS REFUSING TO APPEAR - COURT'S POWER TO COMPEL ATTENDANCE - PROCEDURE - INTERPRETATION OF PROVISIONS.
Fact of the Case:
In a suit pending since 2007, the trial court had closed the evidence of the petitioners after they failed to produce a witness (DW 10) on the scheduled date. The petitioners challenged this order, arguing that the trial court erred in closing the evidence without considering the reasons for the witness's absence and without issuing a formal summons under Rule 5 of Order XVI of the Civil Procedure Code (CPC).
Finding of the Court:
The court held that the trial court erred in closing the evidence of DW 10 without first determining whether his presence was necessary and without issuing a formal summons under Rule 5 of Order XVI of the CPC. The court also held that the trial court should have considered the reasons for the witness's absence and should have taken steps to compel his attendance if necessary.
Issues: 1. Whether the trial court erred in closing the evidence of DW 10 without first determining whether his presence was necessary and without issuing a formal summons under Rule 5 of Order XVI of the CPC. 2. Whether the trial court should have considered the reasons for the witness's absence and should have taken steps to compel his attendance if necessary.
Ratio Decidendi: The court relied on the provisions of Order XVI Rules 1, 2, 5, 7A, and 10 of the CPC to hold that the trial court erred in closing the evidence of DW 10 without first determining whether his presence was necessary and without issuing a formal summons under Rule 5 of Order XVI of the CPC. The court also held that the trial court should have considered the reasons for the witness's absence and should have taken steps to compel his attendance if necessary.
Final Decision: The court set aside the trial court's order closing the evidence of DW 10 and directed the trial court to determine whether the witness's presence was necessary and to issue a formal summons under Rule 5 of Order XVI of the CPC if necessary. The court also directed the trial court to take steps to compel the witness's attendance if necessary.
ORDER :
The petitioners herein are the defendants in O.S.No.19 of 2007 pending before the II Additional District Judge, Hindupur. On 17.11.2021, the trial Court had closed the evidence of the petitioners. Aggrieved by the said order, the petitioners had approached this Court, by way of C.R.P.No.1266 of 2021. This Civil Revision Petition was disposed of by an order dated 07.12.2021 with the following directions :
2. The defendant, who is to be examined as DW.1, shall appear before the trial Court on 14.12.2021 without fail and shall be cross-examined on that day and such further days as may be necessary for the counsel of the plaintiffs to complete the cross-examination.
3. The defendants shall also furnish a list of witnesses that are proposed to be examined by them on 14.12.2021 itself.
4. On such list of witnesses being furnished, the trial Court shall fix a schedule for examination of such witnesses.
5. The witnesses cited by the defendants/petitioners herein shall appear, without fail on the dates indicated by the trial Court. Any failure of the said witnesses to appear on the dates given by the trial Court shall result in the said witnesses being eschewed.
6. In the event of any difficulty for the trial Court to adhere to the schedule on account of any delay caused during the cross-examination of the witnesses, it would be open to the trial Court to alter the schedule.
7. Sri C.V. Mohan Reddy, learned Senior Counsel for the respondents seeks a further direction that the defendants should complete re-examination on the same day on which the cross-examination is completed. It will be open to the trial Court to decide on this issue.
2. Thereafter, the matter was taken up by the trial Court. On 14.12.2021, the defendants had filed a list of witnesses containing 10 names and the trial Court fixed a schedule for examining these witnesses.
3. However, the evidence of D.W.1 which was fixed for 21.12.2021 could not be completed till 23.12.2021. On account of this delay, a fresh schedule was fixed on 23.12.2021. It appears that the examination of witnesses was carried out in accordance with this schedule up to D.W.9. It is also the case of both sides that D.W.6 to D.W.9 were called absent on the dates on which they were to be available for examination and that their evidence was closed on the respective dates given in the schedule.
4. It also appears that on 20.12.2021, the petitioners had filed for summons to be issued to D.W.10, who was the Commercial Tax Officer, Hindupur, under Rule 1 and Rule 5 of Order XVI C.P.C. Subsequently, summons are said to have been obtained by the Petitioners herein, under Rule 7A of Order XVI, and served on D.W.10 by the petitioners themselves.
5. The evidence of D.W.10 was to be recorded on 17.01.2022, according to the schedule given on 23.12.2021. However, on that day D.W.10 did not appear in Court nor was any affidavit filed in lieu of examination-in-chief on behalf of D.W.10. The trial Court recorded these two facts and adjourned the matter to 19.01.2022 on the ground that the high Court, on the administrative side, had issued a circular No. ROC.No.192/SO/2020, dated 10.01.2022, directing all the trial Courts to defer witness action until further orders. The matter was again called on 19.01.2022 and the case was posted to 21.01.2022 with the same observations. On 21.01.2022, the case was posted to 27.01.2022.
6. At that stage, the respondents herein moved I.A.No.1 of 2022 before this Court in CRP.No.1266 of 2021 for a direction to the trial Court to eschew the evidence of Commercial Tax Officer, Hindupur (DW 10) in the above suit or in the alternative to permit recording of his evidence by video conference and pass such other orders as are deemed fit.
7. When the matter was taken up on 24.01.2022, Sri C.V.Mohan Reddy, learned Senior Counsel for the respondents herein and Sri D.Prakash Reddy, learned senior counsel for the petitioners herein had ap
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