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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vikas Bahl, J.
Inder Pal and Another – Appellants
Versus
Sat Pal (Now Deceased) through his LRs. and Others – Respondents
CR No. 3734 of 2023
Decided On : 29-07-2024
CPC - Civil Procedure - Order 16 Rule 10 - The court emphasized the necessity of enforcing witness attendance and the obligation of the court to take coercive steps when a party has complied with procedural requirements.
Fact of the Case:
The petitioners sought to summon two material witnesses for their defense in a civil suit, having complied with procedural requirements, but the trial court closed their evidence without taking coercive steps to secure the witnesses' attendance.
Finding of the Court:
The court found that the trial court failed to enforce attendance of the witnesses as required by Order 16 Rule 10 CPC, leading to an improper closure of evidence.
Issues: Whether the trial court erred in closing the evidence of the petitioners without taking coercive steps to secure the attendance of material witnesses.
Ratio Decidendi: The court held that it is the duty of the trial court to enforce attendance of witnesses when a party has complied with all procedural requirements, including the payment of diet money.
Result: The revision petition is partly allowed, and the impugned orders are set aside, allowing the petitioners to examine the witnesses.
JUDGMENT :
Vikas Bahl, J.
1. This is a Civil Revision Petition under Article 227 of the Constitution of India for setting aside orders dated 15.05.2023 (Annexure P-6) and dated 19.05.2023 (Annexure P-8) passed in Civil Suit No. 4705 of 2017 instituted on 05.01.2018 titled as Satpal vs. Inderpal and others.
2. Learned counsel for the petitioners has submitted that in the present case, respondents no. 1 and 2 had filed a civil suit in which the petitioners were defendants. It is submitted that the petitioners were relying on a Will executed by their mother and the attesting witness Gulshan Kumar as well as deed writer Gopal Bhushan Sharma were necessary witnesses for proving the said Will. It is further submitted that in the present case, the suit was instituted on 05.01.2018 and the issues were framed on 28.03.2018 and the evidence of the plaintiff was closed on 18.10.2022 and the first date for the evidence of the defendants was fixed as 03.11.2022. It is submitted that on 03.11.2022, the case was adjourned to 17.11.2022 and prior to 17.11.2022, on 16.11.2022, an application was filed by the petitioner for summoning the witnesses including the above said two witnesses and the diet money was duly deposited and reference in this regard has been made to receipt dated 16.11.2022 (Annexure P-3). It is stated that summons were issued in the case and after summons were served, no coercive steps were taken for enforcing the attendance of the abovesaid witnesses and the same was in violation of the provisions of Order 16 Rule 10 CPC and also against settled law. It is submitted that once the petitioners had done all which was required to be done, then it was the duty of the Court to have issued bailable/ non-bailable warrants and take coercive steps to produce the said witnesses instead of closing the evidence of the petitioners, which has been done vide order dated 19.05.2023. It is further submitted that even the grant of one opportunity to lead evidence at their own responsibility was not in accordance with law and thus, even the order dated 15.05.2023 deserves to be set aside on the said ground alone.
3. Learned counsel for the respondents, on the other hand, has submitted that a large number of witnesses were examined by the petitioners after taking the help of the trial Court. It is submitted that as many as 13 opportunities were taken by the petitioners to examine their witnesses and the petitioners are only trying to delay the matter.
4. This Court has heard the learned counsel for the parties and has perused the paper book.
5. It is not in dispute that the civil suit was instituted on 05.01.2018, issues were framed on 28.03.2018 and the evidence of the plaintiffs was closed on 18.10.2022 and the first date for the evidence of the defendants was fixed as 03.11.2022. It is also not in dispute that on 03.11.2022, the case was adjourned to 17.11.2022 for defendant evidence and on 16.11.2022 i.e. a date prior to 17.11.2022, an application dated 16.11.2022 (Annexure P-2) was filed for summoning the witnesses including the following two witnesses:
DM Rs.100/-
xxx xxx xxx
(iv) Gulshan Kumar son of Piara Lal R/o Village and Post Office, Fatehgarh Churrian, Amritsar.
DM Rs.100/-”
6. As per the case of the petitioners, they are material witnesses as one is the attesting witness and other is the deed writer of the Will, as per the case propounded by the petitioners. A perusal of the receipt dated 16.11.2022 (Annexure P-3) would show that the diet money regarding the same has been deposited. A perusal of the zimni orders would show that although coercive steps were taken to secure the presence of other witnesses but no coercive steps were taken to secure the presence of the above said two witnesses, who are material witnesses. It is a matter of settled law that as per the
The court established that the trial court must take coercive steps to secure witness attendance when a party has fulfilled procedural obligations under Order 16 Rule 10 CPC.
The trial Court must enforce attendance of witnesses and cannot close evidence without taking necessary coercive measures, ensuring fair opportunity for parties to present their case.
The trial court erred in closing the evidence of DW 10 without first determining whether his presence was necessary and without issuing a formal summons under Rule 5 of Order XVI of the CPC.
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