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1968 Supreme(P&H) 152
PUNJAB & HARYANA HIGH COURT
R.S.Sarkaria, J.
Balwant Singh Bhagwan Singh
Versus
Raj Singh Baldev Kishen
Civil Revision No. 697 of 1968,
Decided On : OCTOBER 17, 1968
The court cannot compel a party to obtain summons and serve them either himself or through his agent on the witnesses. Dasti process can be issued only at the request of the party and not otherwise.
Headnote:
CIVIL PROCEDURE CODE - ORDER 16, RULES 1, 1-A, 8 - SUMMONS TO WITNESSES - ISSUE OF DASTI PROCESS - DISCRETION OF COURT - CIRCUMSTANCES IN WHICH DASTI PROCESS CAN BE ISSUED - COURT CANNOT COMPEL A PARTY TO OBTAIN SUMMONS AND SERVE THEM EITHER HIMSELF OR THROUGH HIS AGENT ON THE WITNESSES - DASTI PROCESS TO BE ISSUED ONLY AT THE REQUEST OF THE PARTY AND NOT OTHERWISE - DELAY IN DEPOSITING PROCESS-FEE - NOT SUFFICIENT TO CONCLUDE THAT THE DEFENDANT WAS DELIBERATELY INDULGING IN DILATORY TACTICS OR ABUSING THE PROCESS OF THE COURT - EVIDENCE SHOULD NEVER BE SHUT OUT - FULLEST OPPORTUNITY SHOULD ALWAYS BE GIVEN TO THE PARTIES TO GIVE EVIDENCE IF THE JUSTICE OF THE CASE REQUIRES IT - PRIVATE PERSONS OR PARTIES TO A LITIGATION CANNOT BE ALLOWED TO BRING OR HANDLE JUDICIAL RECORDS IN THIS MANNER.
Fact of the Case:
The defendant was serving in the Army and was posted at a station away from Nabha. He could neither deposit the process-fee within the unreasonably short period of 3 days, fixed by the trail Court, nor could he take out Dasti Process either service upon the witnesses or for summoning the file of another case from the Record Room. The trial Court passed the impugned order, which is being impugned in Civil Revision 697 of 1968, that the three D. Ws. would be deemed given up.
Finding of the Court:
The court held that the impugned orders in Civil Revisions 697 and 698 of 1968 are clearly erroneous and unjust. The court set aside those orders and sent the case back to the learned Subordinate Judge, Nabha, with the direction that he should give further opportunity to the defendant to summon his witnesses and the records through the Court on deposit of the process-fee within a reasonable time to be fixed by the Court.
Issues: 1. Whether the trial Court was justified in passing the impugned order shutting out the defendant's evidence on account of his default? 2. Whether the issue of Dasti process is a mode of service not recognised by anything contained in Order 16 or any other provision of code of civil Procedure?
Ratio Decidendi: 1. The court held that the trial Court was not justified in passing the impugned order shutting out the defendant's evidence on account of his default. The court observed that all rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. 2. The court held that the issue of Dasti process is a mode of service not recognised by anything contained in Order 16 or any other provision of code of civil Procedure. However, the court observed that there is nothing in the Civil Procedure Code which expressly inhibits the service of summonses by this mode, which has come to be known as Dasti process. The court held that such process is not to be issued in the first instance. It is to be issued only if the party requests for the issue of such process or is other wise ready and willing to do so when he is precluded by his own default from receiving further assistance of this Court for the issue of process or summonses for service in the normal way through the process serving Agency of the Court.
Final Decision: The court allowed the revision-petitions, set aside the impugned orders, and sent the case back to the learned Subordinate Judge, Nabha, with the direction that he should give further opportunity to the defendant to summon his witnesses and the records through the Court on deposit of the process-fee within a reasonable time to be fixed by the Court.
1. The facts leading to Civil Revisions 697 and 698 of 1968 are common and may be set out as under; Firm Raj Singh Baldev Kishan instituted a suit for permanent injunction restraining the defendants, Balwant Sinmgh and Surjit Kaur , from interfering with the plaintiffs possession of a house. Written statement was filed by the defendants on 31-10-1967. The case was then fixed for the plaintiffs evidence on 14-12-1967. On that date, the plaintiff examined 5 witnesses. One witness, who did not appear on that day , was examined on a subsequent date, namely, 15-2-1968. The plaintiff concluded his evidence on that day. The case was then fixed for 5-4-1968, on which date the defendants furnished a list of their witnesses. The defendants named Dassundhi Ram. Pritam Singh . Darshan Singh, and Karnail Singh as their witnesses. They also made an application for summoning the records of another case., Dasaundhi Ram actually appeared in response to the summons on 6-5-1968. He could not be examined on that date because the presiding officer of the Court was on leave. He was bound down to appear on 17-5-1968. The other witnesses could not be served. The Court , therefore, ordered that bilabial warrants of arrest be issued against Dasaundhi Ram, and the others three be summoned . The case was adjourned to 30-5- 1968 for the evidence of these witnesses. The defendant (Balwant Singh) did not deposit the process-fee within the time fixed by the Court as he was serving in the Army at Chandigarh. He sent the money by money-order to his counsel, only after the expiry of the period fixed by the Court. The Court had also directed that the process should be issued in duplicate, one should be sent for service through the process-serving Agency of the Court, and a duplicate process be issued to the defendant or his agent for serving on his witnesses, personally. On the date fixed, i.e., 30-5- 1968. The Court made the following order ,which is being impugned in Civil Revision 697 of 1968:
"Dasondhi Ram, DW. Not summone for lack of P. F. was deposited late, The defendant was directed on the last date to get duplicate summons Dasti and get service effected but he failed to do so. In the circumstances , the three D. Ws. would be deemed given up. Copy of the order to be proved from the file proposed to be summoned from the Record Room not filed. It is stated that the same would be issued in the next few days. Therefore to come up on 14-6- 1968. No other date will be given."
2. Thereafter, the defendant filed a copy of the order from th records of th case which were sought to be summoned. However, he failed to take the process Dasti, i.e., by hand. Thereupon the trial Court passed the order, dated 16-7-1968. That impugned order reads as follows:
"No evidence of the defendant is present, He has applied for summoning a file from the Record Room and it was ordered that he would take requisition slip Dasti. However, the defendant did not take the slip Dasti. As ones (?) it would be presumed that he was not interested in summoning the file. Certain documents tendered . A date for examining the defendants is requested. To come up for defendants statement and plaintiffs rebuttal on 30-7-1968".
3. Firstly, it is contended by the counsel for the petitioner that the defendant was serving in the Army and was posted at a station away from Nabha, Consequently , he could neither deposit the process-fee within the unreasonably short period of 3 days, fixed by; the trail Court, nor could he take out Dasti Process either service upon the witnesses or for summoning the file of another case from the Record Room. In the peculiar circumstances of the case, therefore, it was unfair on the part of the Court to shut out the defendants evidence on account of his default , It is suggested that the trail Court ought to have given another opportunity to the defendant to summon the witnesses and there cord through the Court. It is added that the opposite party could be amply comp
