The court established that the trial court is obligated to follow the procedural requirements of the CPC regarding witness summons and the issuance of proclamations when a witness fails to appear.

JUDGMENT

1. Petitioners-defendant Nos.1 and 2 in Com.O.S.No.432/2021 on the file of LXXXVIII Additional City Civil and Sessions Judge, Bengaluru are before this Court being aggrieved by the rejection of I.A.No.27 filed under Order XVI Rule 10(2) of CPC seeking to issue proclamation against the witness.

2. Heard the learned counsel Sri.Abhilash Vaidyanathan, for the petitioner and learned counsel Sri.Gaurav G.K., for the respondent-plaintiff and perused the writ petition papers.

3. Learned counsel for the petitioners would submit that the petitioners-defendants were permitted to take out witness summons to one Sri.Jyothiranjan Pattanaik and accordingly summons was served on the said witness. Even after service of witness summons, the said person has failed to appear before the trial Court. Since the evidence of said witness is absolutely necessary, the petitioners-defendants filed I.A.No.27 under Order XVI Rule 10(2) of CPC praying to issue proclamation against the said witness Sri.Jyothiranjan Pattanaik. Learned counsel would contend that the trial Court instead of considering the said application in terms of Order XVI Rule 10 of CPC, only on the ground that the defendants have filed the application just to delay the proceedings, rejected the application. It is his submission that the trial Court has a duty to consider the application in terms of Rule 10 of Order XVI of CPC and to examine as to whether proclamation needs to be issued against the said witness on whom witness summons has been served.

4. Per contra, learned counsel Sri.Gaurav G.K. for the respondent would not dispute that the trial Court was required to consider the I.A.No.27 in terms of Rule 10 of Order XVI of CPC. Further, he would pray for an opportunity to file objections to I.A.No.27 before the trial Court. Thus, he prays for passing appropriate orders in the matter.

5. Having heard the learned counsels for the parties and on perusal of the writ petition papers including the impugned order, I am of the view that the trial Court has committed error in rejecting I.A.No.27 filed under Order XVI Rule 10(2) of CPC and it needs reconsideration.

6. Admittedly, on the request of petitionersdefendants, witness summons is issued against one Sri.Jyothiranjan Pattanaik. It is the case of the petitionersdefendants that though witness summons is served on the said witness, he has failed to appear before the Court. In that circumstance, I.A.No.27 was filed under Order XVI Rule 10 (2) of CPC. Order XVI Rule 10 of CPC reads as follows:

"10. Procedure where 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, or

(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 to other conspicuous part of the house in which he ordinarily resides.

(3) In view 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