Provisions of Order XVI, Rule 10 of the Code of Civil Procedure apply only to a person to whom a summon has been issued to attend to give evidence or to produce a document.

Binod Kumar Roy, J.

1. The plaintiffs, who are the petitioners challenge an order issuing a warrant to produce their own witness who was cross-examined in part but refused to appear for his further cross-examination.

2. The necessary facts are very short and simple.

3. The plaintiffs filed the suit in question for specific performance of a contract, They produced, of their own, one Bhola Mahto as P.W. 1 for his examination in chief which was done on 10th November, 1986. After the examination in chief was over he was cross examined by the other side but his cross-examination could not be completed. It appears that the. petitioners thereafter also examined one Jagdish and three further witnesses and that it appears that they filed a petition under Order XVI, Rule 10 of Sub-rules (2) and (3) to issue warrant against aforementioned Bhola Mahto for his further cross-examination on the ground that he has been gained over and had gone to the camp of the defendants, who did not allow him for his fur her cross-examination.

4. Mr. B.P. Bhagat, learned Counsel for the petitioners contends that the court below has completely misconceived the provisions of Sub-rules (2), (3) of Rule 10 of Order XVI of the Code of Civil Procedure which do not make any distinction in regard to the witnesses which are to be produced by the parties themselves or through court and that the court below has committed an error in holding that the statements made by their witness Bhola Mahto shall not be considered.

5. In my view the court below has taken a correct view of law.

6. The jurisdiction to issue a warrant to a witness, who fails to comply with summons, is contained in Rule 10 of Order XVI of the Code of Civil Procedure which runs as follows:

Rule 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 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 copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.

(3) In lieu of or at the time of issuing such proclamation or at any time afterwards, the Court may, in its discretion) issue warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12:

Provided that no Court of Small Causes shall make an order for the attachment of immoveable property.

7. From a bare perusal of the aforementioned provisions, it is clear that these provisions apply only to such a person to whom a summon has been issued etiher to attend to give evidence or to produce a document and if that person fails to comply the direction issued to him. They do riot apply in regard to such a person who appears suo motu or at the instance of the party.

8. My view also stands partially supported by Division Beach decision of the Calcutta High Court in Nabadip Chandra and Ors. V/s. The Secretary of State, re