IMPORTANT POINT
Production of witnesses – A party out of necessity may seek assistance of Court to procure presence of witness.

JUDGMENT

Through the medium of this writ petition, the petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 06.04.2022, passed by the 3rd Additional Munsiff, Jammu (hereinafter referred to as “trial Court”) in a suit titled “Colonel Vijay Singh vs. Col. Dalbir Singh (deceased) through Legal Representatives Lalita Karki and Others’.

2. A suit for mandatory injunction was instituted by the petitioner against the defendant or any party claiming through him to handover vacant and peaceful possession of the house-Durga Niwas, situated at Amphala, Jammu in Survey No. 287 min, measuring 5 Kanals 11 Marlas along with the said land to the plaintiff and the same is pending before the trial Court. The litigation between the parties continued and the original defendant Lt. Col. Dalbir Singh died on 11.10.2006 without deposing before the trial Court in his defence, his legal representatives were brought on record on 15.11.2006. An application was filed by the respondents/defendants for permitting them to examine seven witnesses in place of the list of witnesses already submitted by the respondents and also the witnesses who had already filed their evidence by way of an affidavit. The petitioner/plaintiff objected to the same on the ground that the respondents having submitted a long list of witnesses are shying away from examining them and are only trying to prolong the trial and frustrate the proceedings, as such, the same was devoid of any merit. The learned trial Court by the impugned order dated 06.04.2022, allowed the application of the defendants under Order XVI with cost of Rs. 5,000/- to be paid to the opposite party for inconvenience caused.

3. The petitioner has challenged the impugned order dated 06.04.2022, on the ground that the same is perverse and illegal as the same was passed without taking into consideration any cause much less a good cause shown by the respondent who had filed three different applications for examination and summoning the witnesses. Learned counsel for the petitioner submits that the grounds carved out in the application are only an afterthought to defeat and delay the trial. The trial Court, it is submitted had erroneously accepted the affidavits of two persons namely Abhimanyu Partap Singh Jamwal and Amit Dutta who were cited in as witnesses even though the application for permitting them to examine witnesses was yet to be decided, this has resulted in delay in the proceedings. It is urged that the trial Court has acted with material irregularity in allowing the application which has resulted in failure of justice, therefore, the impugned order is required to be quashed in exercise of supervisory jurisdiction.

4. Learned counsel for the respondents submited that during the pendency of the suit, the original defendant expired and his daughters being the legal representatives were brought on record. The legal representatives of the defendant, it is stated, despite availing all efforts were unable to contact many witnesses, as some had died and some had left the place of residence and moved elsewhere, they have thus even deleted ten witnesses as mentioned in the list. It is submitted that in order to expedite the proceedings, they were also ready to delete the name of witnesses at Serial Nos. 11, 12, 13, 14, 17, 18, 20 and 22. It is urged that the respondents, had moved an application for allowing them to examine witnesses as given in the list in place of list of witnesses already submitted by the defendant. The respondents also undertook to produce the witnesses on their own and filed their affidavits in support of their defence to prove issue Nos. 5 and 6. They, however, sought assistance of the trial Court in summoning only one witnesses, i.e., witness No. 7. The respondents also stated in the trial Court that they do not want to press the application filed on 18.05.2016.

5. The assistance of the Court to summon witness No. 7 wa