JUDGMENT - DABHOLKAR N.V., J.:---Heard learned Counsel for the respective parties.

2. Rule. By mutual consent, rule is made returnable forthwith.

3. It appears that Regular Civil Suit No. 1159 of 1995 is filed by petitioner against respondents for partition and separate possession. In the suit on 4-4-2002, plaintiff prayed for witness summons. It is an admitted position that defendants were asked to enter the witness box first. Defendants have completed their evidence and subsequently evidence of plaintiff was in progress. On 8-4-2002, Court ordered issuance of summons to witnesses as prayed by plaintiff and on the same day, plaintiff has paid the process.

On 12-4-2002, plaintiff filed another application requesting for issuance of summonses to the same witnesses, because they were not present on that day. From the say filed by respondents and order of the Court dated 12-4-2002 on that application, it appears that the witnesses were served but they were absent. The learned Judge, therefore, observed that there is no reason to re-issue the witness summonses and he rejected the application. It is this order, being impugned in the present revision.

4. Shri Challani, Advocate for respondents has taken me through Order XXI, Rules 10 to 12 of Civil Procedure Code. According to him, when admittedly, the witnesses were served and absent, plaintiff could have at the most applied for coercive process by the Court for enforcing the presence of the witnesses and therefore, the trial Court, in rejecting the application to repeat the summons to the witnesses, has committed no illegality or material irregularity and the order does not call for any interference.

5. Shri Deshpande, Advocate for the petitioner has pointed that the roznama of the case shows that the Court has not only rejected the application for fresh summonses, but practically shut the evidence of plaintiff by not taking any coercive method. He has placed reliance upon the observations of the Himachal Pradesh High Court in the matter of (M/s. Sohan Singh and Company v. Mohammad Aishak Tyagi)1, A.I.R. 1973 H.P. 39. In this matter, the witnesses summoned by defendant No. 3 were necessary witnesses for production of documents. Defendant had taken all necessary steps for summoning two witnesses and they were also duly served. The learned Civil Judge, instead of adjourning the case and assisting defendant in procuring the attendance of witnesses, passed and order signifying that the witnesses were not present, defendant was also absent and it appeared that defendant was not interested in producing the evidence. It was held that, when the summons were duly issued by the Court and properly served upon the witnesses, the Court itself could initiate attendance of witnesses under Order 16, when obviously the defendant could not proceed with his own statement unless the necessary documents were available in the Court. Thus the Himachal Pradesh High Court was of the view that the Court should suo motu proceed for procuring the attendance of witnesses by coercive methods.

Even the Punjab and Haryana High Court in the matter of (M/s. National Rice and Dal Mills v. Food Coproration of India)2, A.I.R. 1972 P and H 163, has taken identical view that it is the duty of the Court to enforce attendance of the witnesses summoned by the parties, if necessary, by coercive process and in the interest of justice it can do so by adjourning the case from time to time. It was further observed:

".......It would not be justifiable for the Court to refuse to issue summons on the ground that the summons were not returned or on the ground that some of the witnesses could not be served because the diet money was not paid to them, or that some witnesses though served did not appear before the Court........"

Of course the issue in this matter was propriety of coercive process issued by the Court.

6. The issue before this Court is not whether the Court has/has not powers to use coercive methods for procuring the presenc

Click Here to Read the rest of this document