Kamal Chand vs Shyam Textiles - 1985 Supreme(MP) 615

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : K. L. Sethi & A. K. Sethi.
For the Respondent: P. C. Kala.

Headnote:Civil Procedure Code, 1908 – O. 16, R. 2 – expense for service of witness could not be deposited due to confusion created by order – sheet – right to call witness for cross – examination should not be closed.
        Short Note
       1. It appears that when the evidence of parties was being recorded, one of the witnesses of the plaintiff – Ramavtar who was examined by the plaintiff but could not be cross – examined and on a number of dates the case was adjourned for that purpose and ultimately on 15th September 1979 the Court ordered that if the defendant wants to cross – examine the witness, he should pay process and get the witness summoned. It appears that thereafter on come dates the parties and witnesses were not present although the process was paid by the defendant for this witness and, therefore, the Court wrote usual order – sheet by saying that parties should keep their witnesses present, or pay proceS. Ultimately, on 25th April 1981 the learned Court below ordered that the witness Ramavtar was served but was not present and therefore directed a bailable warrant for Rs. 100/ – to be issued against him and again observed that both the parties will pay process and expenses for their witnesses. The order – sheet shows that after this order sheet was written and the next date 30 – 7 – 1981 was given, there is a further addition by adding the word ^^iqu%^^ wherein the order reads that as defendant had called witness of the plaintiff and the defendant's witnesses are yet to be examined, the above order should be, understood in that context. Later, on the next date i.e. 30 – 7 – 1981, as the petitioner – defendant had not paid process for issuance of warrant against the said witness of the plaintiff, the witness was not present and therefore the Court closed the opportunity of cross examination of the petitioner's witness and hence the present revision petition.
       2. Held : It is, no doubt, true that at one stage the cross – examination was adjourned on the condition that defendant – petitioner shall pay process and get the witness served but in the later order – sheets it appears that this was lost sight of and routine order – sheets were written saying that both the parties should either keep their witnesses present or pay process for their service. It is clear that this witness was the witness of the plaintiff and. therefore, ordinarily from these order sheets what could be understood was that this witness was to be kept present by the plaintiff or should have been summoned by payment of process by the plaintiff. The order dated 25th April 1981 is also not very clear. It only shows that this witness, inspite of service, was not present and therefore the Court directed issuance of a bailable warrant of Rs. 100/ – for the presence of this witness but it is significant that the learned Judge did not direct as to whether this warrant should be issued at the cost of the Court or at the cost of either of the parties. Therefore, this part of the order does not indicate that it was for the defendant – petitioner to pay the charges for issuance of warrant against this witneS. What has been added after the word ^^iqu%^^ also only indicates that the defendant has called one of witnesses of the plaintiff and the defendant's witnesses are yet to be examined and it is further said that it is in this context that the above order should be understood. From this order – sheet also it could not be dearly spelled out that this meant that the defendant petitioner should pay the charges for issuance of warrant against this witness or pay process for getting this witness produced in Court. It is, therefore, clear that on the next date under this confusion none of the parties paid process for this witness and so he remained absent and for that absence by the impugned order the learned Court below has penalied the defendant by forfeiting his opportunity to cross – examine the witneS. It is, therefore, apparent that by this kind of confusion, the learned Court below bas committed material irregularity in exercise of jurisdiction.
       3. The revision petition is, therefore, allowed. The order passed by the learned Court below, dated 30th July 1981, is hereby set aside and it is directed that the learned Court below will give an opportunity to the petitioner – defendant to get the witness served on payment of process by the defendant – petitioner and getting the witness served at the risk of the petitioner – defendant so that the cross – examination may be completed.
       Revision allowed.