JUDGMENT

S.K. MISHRA, J. : In this writ petition, the petitioner being the defendant No.1 in Title Suit No.729 of 2001 of the Court of Civil Judge (Junior Division), First Court, Cuttack assails the order dated 12.08.2013 rejecting the application to issue warrant for the attendance of D.W.2- Biswaranjan Sahoo.

2.The facts of the case leading to filing of the writ petition are that the defendant-writ petitioner examined himself and then examined another witness namely Biswaranjan Sahoo as D.W. No.2. He tendered evidence affidavit and was cross-examined in part and the case was posted to another day for further cross-examination of that witness. The aforesaid witness in spite of approaches made by the defendant did not turn up to the Court for further cross-examination, on the other hand, he expresses that unless summons were issued from the trial Court to him he would not attend the trial Court.

3.In the aforesaid circumstances, the defendant has filed an application on 25.07.2013 praying therein for procuring attendance of said D.W.2 before the trial Court either by issue of warrant of arrest or otherwise at the expenses of the defendant. The plaintiffs have filed their objection to such petition on 28.06.2013. It is further stated that Sri P.K. Biswal, Advocate, who was engaged for defending the suit on behalf of the defendants, unexpectedly expired and the case was handled by his Junior Associate Sri M.R. Tripathy. It is further stated that because of lack of experience to handle civil cases, on 24.06.2013 the defendants engaged Mr. G.C. Das, Advocate and Vakalatnama was filed on that date. On 26.06.2013, a petition was filed by the defendant through his newly appointed Advocate praying for procuring attendance of D.W.2, who tendered his evidence affidavit and examined in chief and was cross-examined in part, but did not turn up before the Court for further cross-examination either by issuing warrant or otherwise.

4.Because of non-availability and absence of Shri G.C. Das, Advocate newly appointed on behalf of the defendant due to his ailment, the matter was taken up by Sri Tripathy and due to lack of knowledge, misguidance by other colleagues and annoyance of Court for hearing of the suit, in good faith hastily e filed petition for not pressing the application on 26.06.2013. Accordingly, the Court allowed the application and rejected the original application dated 26.06.2013 and posted the case to 27.06.2013 for hearing. Thereafter, on two occasions the petitions for time were filed by the defendant, which was allowed on payment of cost. In the meantime, Mr. G.C. Das, Advocate for the defendant recovered from his illness and he was satisfied that the suit could not be conducted/defended properly by junior Advocate Sri Tripathy, who could not satisfy the Court for procuring attendance of D.W.2, who tendered his evidence of examination-in-chief and cross-examined in part. Under such circumstance, they filed an application on 25.07.2013 for just and proper adjudication of the issues of the suit.

5.The plaintiffs filed their written objection. Their main objection is that the suit is a year-old case and if the petition of the defendant is allowed, it will run for uncertain period and the plaintiff will be harassed. It was further stated that without summons of the Court the defendant No.1 has called D.W.2 for his cross-examination. So, it is the duty of defendant No.1 to bring D.W.2 for his further cross-examination. Hence, it is objected that instead of procuring D.W.2, the defendant No.1 has filed the petition to issue warrant against him only to delay disposal of the case. The Court has not called D.W.2 to give evidence on behalf of the defendant. Only to linger the case, the defendant has adopted the process and thereby harassed the plaintiff.

It is further pleaded that there is no provision in the Code of Civil Procedure, 1908, hereinafter referred as the ‘Code’ for brevity, to issue warrant to a witness to procure his attendan