Back
High Court Of Himachal Pradesh
V.K.MEHROTRA
STATE OF H.P. - Appellant
Versus
DEVKI - Respondent
C. R. 33 of 1991
Decided On : 05/23/1991
ORDER XVI, RULE 10, C.P.C. - SUMMONING OF WITNESSES - ORDER XVI, RULE 10(2) - JURISDICTION TO ISSUE PROCLAMATION - MATERIALITY OF EVIDENCE - LAWFUL EXCUSE - INTENTIONAL AVOIDANCE OF SERVICE - ORDER XVI, RULE 12(1) - IMPOSITION OF FINE - SHOW CAUSE NOTICE - SUMMARY
Fact of the Case:
The State of Himachal Pradesh challenged an order of the Sub Judge, Bilaspur, directing the issuance of bailable warrants for the presence of two witnesses and a show cause notice for action under Order XVI, Rule 12, C.P.C.
Finding of the Court:
The court held that the Sub Judge acted without jurisdiction in issuing the bailable warrants and the show cause notice without first determining the materiality of the witnesses' evidence and whether they had failed to attend without lawful excuse.
Issues: 1. Whether the Sub Judge had jurisdiction to issue bailable warrants for the presence of the witnesses without determining the materiality of their evidence and whether they had failed to attend without lawful excuse? 2. Whether the Sub Judge had jurisdiction to issue a show cause notice for action under Order XVI, Rule 12, C.P.C. without first determining the materiality of the witnesses' evidence and whether they had failed to attend without lawful excuse?
Ratio Decidendi: 1. The court held that under Order XVI, Rule 10(2), C.P.C., the court can issue a proclamation requiring a witness to attend to give evidence or to produce a document only if it has reason to believe that the evidence is material and that the witness has, without lawful excuse, failed to attend or has intentionally avoided service. 2. The court held that the jurisdiction of the court to issue a proclamation under Rule 10(2) depends upon recording by it of a finding that the evidence of a witness was material and further that the witness has failed to attend without lawful excuse or had intentionally avoided service. 3. The court held that the power to direct notice to issue for a proposed action under Order XVI, Rule 12, C.P.C. can only be exercised when the court has first come to the conclusion that the evidence of the witness, who fails to appear before the court in spite of service of summons, was material and that he had failed to attend without lawful excuse.
Final Decision: The court quashed the Sub Judge's order directing the issuance of bailable warrants and the show cause notice, and directed the trial court to dispose of the suit expeditiously.
1. The State of Himachal Pradesh, defendant in a suit (No. 114/1 of 1988) filed by the plaintiff-respondent, in the court of Sub Judge, Bilaspur on February 17, 1988. has approached this court for redress against an order of the learned Sub Judge dated February 8, 1991, in the present revision petition under Section 15, C.P.C.
2. For various reasons, which need not be recounted, the suit has remained undecided, so far. However, what is relevant for the disposal of this revision is the fact that some witnesses summoned by the plaintiff included the Chief Secretary to the Government of Himachal Pradesh as also the Financial Commissioner-cum-Secretary (Revenue) of that Government. The witnesses were served for February 8, 1991. Two of them namely, Shri M. S. Mukherjee, Chief Secretary, and the Financial Commissioner-cum-Secretary (Revenue), were not present before the court on that day. Three other witnesses were present. They were examined also.
3. In the summons issued to the aforesaid two witnesses, namely, the Chief Secretary and the Financial Commissioner-cum-Secretary (Revenue), it was not indicated whether they were summoned for giving evidence or to produce record, though it was mentioned that they were summoned to appear before the court along with the record.
4. On February 8, 1991, a request was made by the learned counsel for the plaintiff that these two witnesses be summoned through bailable warrants because they had not appeared before the Court in compliance with the summons which had been received in their office on January 15, 1991, nor was any request made for the adjournment of the case on the ground that these witnesses were unable to attend the court for some reason. The learned Senior Sub Judge, Bilaspur, passed an order on February 8, 1991, saying, inter alia : ". . . . . . . . . . .Both these witnesses are served but despite service they are not present nor any request has been sent by any of these two witnesses for the adjournment of the case showing their inability to attend the court in compliance with the summons which have been duly received in their office well within time, that is, on 15-1-1991 (incorrectly mentioned as 1990)...................... both these witnesses be summoned through bailable warrants on filing of PF in the sum of Rs. 500/- each. Show cause notice under Order 16, Rule 12 be also issued as to why not fine as provided under Rule 12 may not be imposed for not appearing in the court even after due service of the summons ............"
5. It is this order which is under challenge before this court in this revision petition.
6. Order XVI, C.P.C. deals with the summoning of witnesses. Rule 10 provides for the procedure to be followed by the court when a witness fails to comply with the summons. Sub-rule (1) says that 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 shall examine on oath the serving officer or the party or his agent, on a question touching the service or non-service of the summons, if the certificate of the serving officer had not been verified by an affidavit, or if service of summons had been effected by a party or his agent. Sub-rule (2), then, says : "Where the court sees reason to believe that the 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 voided 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 house in which he ordinarily resides." It is followed by sub-rule (3), which says that in lieu of or at the time of issuing such proclamation, or at any time afterwards, the court may, in its discretion
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
