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HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF
ANDHRA PRADESH
Sanjay Kumar, J.
Sudini Narsimha Reddy —Petitioner
versus
S. Sarojini and Ors. —Respondents
Civil Revision Petition Nos.2523 and 3744 of 2016
Decided on 14.10.2016
Counsel for the Parties:
For the Petitioner:Sri S.A.V. Sai Kumar, Advocate
For the Respondent No.1:Sri J. Venudhar Reddy, Advocate
For the Respondent No.2:Sri Dida Vijaya Kumar, Advocate
For the Respondent No.3:Sri K. Pradeep Reddy, Advocate
For the Respondent Nos.4 and 5:Sri Mohd. Zaheeruddin, Advocate
IMPORTANT POINT
A party to a suit cannot be punished for failure of his witness to appear before the court. Court is not powerless to compel attendance of a witness.
Headnote:Code of Civil procedure, 1908 – Section 32 and Order XVI, Rule 10 – Petitioner-defendant’s witness summoned through him – Witness not complying with summons and not turning up – Court imposing exemplary cost on petitioner-defendant for every adjournment and closing his evidence – Court not powerless to compel attendance of a witness – It could issue warrants, bailable and non-bailable to the witness; attach his properties – Fine could also be imposed under Order XVI, Rule 12 – But punishing Petitioner-defendant and closing his evidence for failure of his witness to attend the court held not justified. (Para 11, 12, 13)
Result: Both petitions allowed.
Sanjay Kumar, J.—These two revisions arise out of O.S.No.551 of 2006 on the file of the learned Principal District Judge, Ranga Reddy District at L.B.Nagar. The petitioner in both revisions is defendant 5 in the suit. CRP No.2523 of 2016 was filed by him aggrieved by the order dated 28.04.2016 passed in the said suit, taking note of the fact that the petitioner-defendant 5 was not ready and adjourning the matter to 03.06.2016 on payment of further costs of Rs.3,000/- to the District Legal Services Authority. It appears that the trial Court thereafter passed an order on 03.06.2016 closing the evidence of the petitioner- defendant 5, taking note of the fact that costs had not been paid by him as directed by it and posting the suit for arguments on 10.06.2016. Aggrieved by this order, he filed CRP No.3744 of 2016.
2. On 10.06.2016, while ordering notice before admission in CRP No.2523 of 2016, this Court granted interim stay of further proceedings in the suit as the trial Court had closed the evidence of the petitioner-defendant 5 and had posted the matter for arguments.
3. Notice having been served, Sri J.Venudhar Reddy, learned counsel, entered appearance for respondent 1-plaintiff in both the revisions, Sri Mohd. Zaheeruddin, learned counsel, entered appearance for respondents 4 and 5-defendants 3 and 4 in both cases, Sri Dida Vijaya Kumar, learned counsel, entered appearance for respondent 2-defendant 1 in CRP No.3744 of 2016 and Sri K.Pradeep Reddy, learned counsel, entered appearance for respondent 3-defendant 2.
4. Heard learned counsel for the parties.
5. Sri S.A.V.Sai Kumar, learned counsel for the petitioner- defendant 5, would state that the suit was adjourned to 28.05.2016 for further evidence of his client. On the said date, the petitioner- defendant 5 wanted to examine his maternal uncle but he did not turn up, despite service of summons and his appearance earlier. Learned counsel would state that on the one occasion that his maternal uncle appeared earlier before the trial Court, he sought an adjournment on the ground that he would try to settle the dispute between the parties as he was a family elder. According to the learned counsel, the trial Court adjourned the matter by imposing costs of Rs.1,000/- payable to the District Legal Services Authority but on the adjourned date, as his maternal uncle again did not turn up, the trial Court imposed further costs of Rs.3,000/-, payable to the District Legal Services Authority.
6. Sri Dida Vijaya Kumar, learned counsel, would however contest the claim of the petitioner-defendant 5. He would state that the petitioner-defendant 5s evidence as D.W.3 concluded on 01.02.2016 and the matter was adjourned to 05.02.2016 for his further evidence. On the said day, he reported not ready and the matter was again adjourned to 16.02.2016 on payment of Rs.500/- costs to the District Legal Services Authority. Again, the petitioner-defendant 5 reported not ready and the matter was adjourned to 19.02.2016 on payment of further costs of Rs.1,000/- to the District Legal Services Authority. On the said day, the petition filed by the petitioner-defendant 5 was allowed and witness summons to his maternal uncle was permitted to be served through him. The matter was adjourned to 02.03.2016. On the said day, the witness summons was returned unserved and fresh summons was again handed over to be delivered to the witness and the matter was adjourned to 09.03.2016. The same situation continued on the said day and again fresh summons was issued and the matter was adjourned to 15.03.2016. On that day, as the petitioner-defendant 5 was called absent, his evidence was closed and the matter was adjourned to 18.03.2016 for recording the evidence of defendant 2. However, upon an application filed by the petitioner-defendant 5 for recalling the order dated 15.03.2016, the suit was reopened for his further evidence and the proposed witness, the maternal uncle of the petitioner-defendant 5, was also pre
