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2024 Supreme(Online)(KER) 34758
HIGH COURT OF KERALA
VIJU ABRAHAM, J
M.VIJAYAKUMAR – Appellant
Versus
D.ASHOK – Respondent
OP(C) 1726/2024
VARGHESE C.KURIAKOSE, AMRITHA.J KURUVILLA, MATHEW VIPIN C. VARGHESE, JOICE GEORGE, LIJI.J.VADAKEDOM(K/614/1993)
The court ruled that a witness should be given another opportunity for summons issuance before coercive measures are taken, emphasizing the importance of ensuring fair trial rights.
Headnote:(A) Code of Civil Procedure, 1908 – Order XVI Rule 10 – Issuance of summons to witness – Petitioner sought to reopen evidence to examine a witness whose summons was returned unserved – Court allowed fresh summons to be issued after considering the endorsement 'intimated' on the postal article – Previous order set aside. (Paras 2-5)
Facts of the case:
The petitioner challenged the dismissal of an application to reopen evidence for examining a witness, who was the scribe of a disputed document, after multiple unsuccessful attempts to serve summons.
Findings of Court:
The Court directed that fresh summons be issued to the witness, allowing for further proceedings as per the CPC. Issues: The main issue was whether the Court could take coercive steps to procure the witness's presence given the circumstances of the summons being returned unserved. Ratio Decidendi: The Court emphasized the need to provide one more opportunity for service before taking strict measures, referencing its previous ruling in Leela Mathew v. Krishnamoorthy. Result: The original petition was disposed of with directions for further proceedings.
JUDGMENT
Petitioner has approached this Court challenging Ext.P7 common order in IA Nos.30 of 2024, 31 of 2024 & 32 of 2024 in OS No.3 of 2021.
2. IA No.30 of 2024 is filed for reopening the evidence for marking certain documents and to issue summons/warrant to the proposed 3rd defendant. Court has dismissed the said application finding that several opportunities were given to the plaintiff during the trial of the case to examine the 3rd witness. It is the contention of the learned Counsel for the petitioner that he has requested for examining the proposed 3rd witness who is stated to be the scribe of the disputed document in the case, who is living in Cumbum in Tamil Nadu State. Though summons was issued to the said witness the same was returned unserved stating “insufÏcient address”. Thereafter evidence was closed and based on IA No.29 of 2024 the same was reopened and a summons was ordered to the proposed 3rd witness on 03.04.2024. The said summons was also not returned stating “insufÏcient address”. It is the specific case of the petitioner that the said witness is residing in the very same address and the petitioner may be given one more opportunity to issue summons to the said witness by registered post. This Court by order dated 09.08.2024 issued an interim order directing the trial Court to permit the petitioner to take fresh steps for issuance of summons to the witness through registered post. Later on, it was submitted by the respective Counsels appearing for the parties that pursuant to the interim order issued on 09.08.2024, summons was issued to the witness through registered post which was returned unserved stating “intimated”, and the plaintiff was directed to take further steps in this regard.
3. Thereupon a report was called for from the trial Court regarding the present status of the case, especially regarding the service of summons on the witness and as to whether further proceedings as contemplated in order XVI Rule 10 CPC have been taken. A report dated 22.10.2024 has been submitted by the Court stating that the summons issued by registered post to the witness was returned unserved stating “intimated”. Since there was no endorsement in the return cover either “refused” or “unclaimed” the Court was not in a position to confirm whether the addressee is residing in the same address, and therefore deemed service was not recorded, and the Court could not take any coercive steps to procure the presence of the witness as provided in order XVI Rule 10 CPC and that the matter has been adjourned awaiting orders from this Court in the present case.
4. The learned Counsel appearing for the respondent would submit based on Rule 209 of the Indian Post OfÏce Rules, 1933 that an undelivered postal article is one which addressee has refused or after due notice omitted to take delivery, and therefore further proceedings as contemplated in order XVI Rule 10 could be initiated.
5. This Court in Leela Mathew v. Krishnamoorthy [2007 KHC 3758] has held that, even in cases where notice has been returned unclaimed, before taking a strict view and to treat the same as evasion, one more chance should be given by repeating the notice. Here is a case where it is not even returned as unclaimed but returned unserved with an endorsement “intimated”. Therefore, taking into consideration the above facts and circumstances, especially the endorsement in the postal article stating “intimated”, I am of the opinion that fresh summons through registered post may be issued to the witness once again as held by this Court inLeela Mathew’s case cited supra. After the summons has been returned either refused or unclaimed, further coercive steps as mandated in the order XVI Rule 10 may be initiated by the Court to compel the appearance of the witness. Ext.P7 common order dated 09.07.2024 is set aside. Further proceedings in the applications filed as IA Nos.30, 31 & 32 of 2024 in OS No.3 of 2021 shall be initiated as directed above, after affording opportu
