A party can be directed to take dasti summons for the service of the witnesses only if there is a difficulty in effecting service.

1. The only question involved in the case is whether a party can be directed to take dasti summons for the service of the witnesses, whose expenses and process fee stands deposited, but summons were not issued.

2. The contention of Mr.Sharma appealing for the petitioners is that expenses and process fee for summoning four witnesses were deposited in the court on 16.03.1998. However, summons could not be issued, as the application had been misplaced by the dealing assistant. As the witness expenses and process fee stood already deposited, he gave the particulars of those witnesses, who were to be summoned as per the original list. But instead of issuing summons to procure their attendance, the District Judge, Jammu by order dated: 10.09.98 directed the petitioners to take dasti summons. The order according to Mr. K.L. Sharma, is bad because unless some difficulty was experienced by the court in effecting service, such a course could not be adopted.

3. Mrs. Radha Sharma appearing for the non-petitioner, however argued that the delay in summoning the witnesses was entirely due to the plaintiff and it was only to avoid further delay that the order impugned came to be passed. Order XVI of the Code of Civil Procedure provides for summoning of witnesses. In Manga Ram vs. Brij Mohan and ors. AIR 1983 SC 925, the Supreme Court considered its scope and held as follows:-

Sub-rule (1) of Rule 1 of Order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. Sub-rule (2) requires that the parties seeking the assistance of the court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of Order XVI. If a reference to Rule 22 of the High Court rules is recalled at this stage, if merely re-enacts sub-rule (1) and sub-rule (2) of Rule 1 of Order XVI.

If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as list of evidence of each witness whose name is entered in the list has to be earned out in respect of those witnesses for procuring whose attendance the party needs the assistance of the court. When a summons is issued by the court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of Order XVI. The consequences is that where the witness summoned either to give evidence or to produce documents fails to attend or to produce the documents in compliance with summons, the court on being satisfied of the service as provided therein and is further satisfied that the person has without lawful excuse tailed to honour the summons, the court 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 in the manner therein provided. Simultaneously, 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 of his property for such amount as it thinks fit. Even if thereafter the witness fails to appear, the court may impose upon

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