IMPORTANT POINT
Summoning witnesses – Applicant may be called upon to show relevance or need of such witness(es) but he cannot be asked to establish or prove such requirement – Requirement has to be determined by Court.

JUDGMENT

This writ petition has been preferred claiming the following reliefs:—

“It is therefore, humbly prayed on behalf of petitioner that this writ petition may kindly be allowed and

(a) By an appropriate writ, order or direction the order dated 01.05.2023 (Annex-6) passed by the learned Special Judge NDPS cases, District Sriganganagar in Civil Case No.241/2016 rejecting the application of the petitioner (Annex-4) under Order 16 Rule 1 & 2 read with 151 CPC and application for summoning witnesses (Annex-5) may kindly be quashed and set aside.

(b) in consequence thereof the application filed by the petitioner (Annex-4) under Order 16 Rule 1 & 2 read with 151 CPC and application for summoning witnesses (Annex-5) may kindly be allowed in toto as prayed.

(c) Any other writ, order or direction which as deemed just and proper by the Hon’ble Court in the facts and circumstances of the case may also kindly be passed in favour of the petitioners.

(d) The cost of the writ petition may kindly be awarded in favour of the petitioners.”

2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, that the respondent instituted a suit for cancellation of gift deed dated 17.08.2009 pertaining to certain land, against the petitioner, before learned District Judge, Sri Ganganagar. The petitioner filed a written statement to the said suit; whereupon the learned Court below framed certain issues and proceeded with the trial.

2.1. During pendency of the suit, the petitioner filed an application under Order 16 Rules 1 & 2 read with Section 151 CPC seeking to add the Sub-Registrar, Chunavad in the list of witnesses, because the gift deed in question, upon being executed, was registered before him; the petitioner has also preferred an application for summoning the Sub-Registrar along with the relevant record. However, the learned Court below vide impugned order dated 01.05.2023 rejected the both applications preferred by the petitioner.

2.2. Thus, being aggrieved by the impugned order dated 01.05.2023 passed by the learned Court below, the petitioner preferred this writ petition, claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the Sub- Registrar, Chunavad is the relevant and independent witness to prove the issue regarding the execution of gift deed in question, and the respondent has also admitted the fact of execution of the gift deed in question before the Sub-Registrar, Chunavad.

3.1. Learned counsel further submitted that the respondent herself appeared before the Sub-Registrar at the time of registration of the gift deed in question, and the said fact was admitted by the respondent; therefore, the rejection of the applications by learned Court below vide the impugned order is not sustainable in the eye of law.

3.2. In support of his submissions, learned counsel relied upon the judgment rendered by this Hon’ble Court in the case of Shanker Lal Vs Shambhu (S.B. Civil Writ Petition No. 3625 of 2018, decided on 30.08.2018); and the judgment rendered by a Coordinate Bench of this Hon’ble Court in case of Gurjant Singh Vs Smt. Amarjeet Kaur & Anr. (S.B. Civil Writ Petition No. 13516 of 2017, decided on 29.06.2022) Relevant portion of judgment rendered in Gurjant Singh (Supra) is reproduced as hereunder—

“10. It is to be noted that the petitioner-applicant had not mentioned relevant provisions under which he had moved an application seeking summoning of the witnesses but, then, it cannot be a reason to non-suit an applicant.

11. The provisions contained under Order XVI Rule (1) and (2) of the Code of Civil Procedure in unequvivocal terms provide that the Court suo moto or on an application, can issue summons to a witness to appear in the Court.

12. Sub-rule (2) of Rule 1 of the Order XVI of the Code enjoins upon the party desirous of getting a summon issued to a witness to state in its application the purpose for which the witness is proposed to be summoned.

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