ORDER

1. The present petition under Article 227 of the Constitution is directed against the order dated 30.08.2011 passed by Third A.D.J. Guna in Civil Suit No.2-A/2011 whereby an application under Order 16 Rule 1(3) of the CPC preferred by the present petitioner/plaintiff for summoning through court certain witnesses of the Will dated 13.09.1998 was rejected.

2. Learned counsel for the petitioner has submitted before this Court that though one of the attesting witnesses as well as the notary public who had attested the Will were present on some dates before the trial Court but on one pretext or the other, by moving application under provisions of CPC the matter got adjourned and thereafter the said plaintiff/witnesses refused to appear before the Court. Thus to prove the very Will dated 13.09.1998 there Signature Not Verified Signed by: VANDANA presence were required, therefore, an application under Order 16 Rule 1 (3) of CPC was moved for summoning those witnesses through court but learned trial Court rejected the said application on some frivolous grounds which are not sustainable, thus prayed for allowing of the present petition and directing the learned trial Court for issuing the summons to the notary public namely Rajendra Dayal Sharma, who had notarized the Will and Manoj Bhargava and Deepak Singh the attesting witness to the Will to call them and adduce their evidence.

3. To bolster his submissions, counsel for the petitioner has placed reliance on the various proceedings of the learned trial Court and has submitted that it was on behest of the present respondents/defendants that the matter for number of times got adjourned though the said witnesses were present before this Court.

4.Apart from the aforesaid proceedings, learned counsel for the petitioner has also placed reliance in the matter of Gopal Das Renwal vs. Smt. Deepika Jain, reported in 2010(1)MPLJ 594 and has argued that when a party is able to demonstrate before the Court by assigning sufficient adequate reasons for his inability to keep the witnesses present for their cross- examination he can very well seek assistance of the court for summoning those witnesses.

5.On the other hand, learned Senior Counsel appearing for the respondents submitted that no illegality has been committed by the learned trial Court in rejecting the application as the said witnesses whereof the petitioner/plaintiff wanted to summon through court and prove the Will were Signature Not Verified Signed by: VANDANA not required by the learned trial Court to have call those witnesses by issuing summons, since it is settled law that the plaintiff has to prove its own case and he cannot rely upon weakness of the others and for that he is required to make them present.

6.While referring to Order 16 Rule 7 A of CPC, it was argued that any party can very well move an application under the aforesaid provision for issuance of summons for attendance of any person to whom he wishes to call and effect the service of such summons personally and if the petitioner/plaintiff wants to call the said witnesses he can very well move the application in the aforesaid provisions and the Court if deems fit, can issue orders for effecting the service of summons personally through court. He further submitted that the present petition has no sum and substance, accordingly it be dismissed.

7.Heard counsel for the parties and perused the record.

8.The Division Bench of this Court in the matter of Gopal Das Renwal (supra) in paragraph 13 has held as under:-

"13.A perusal of Order XVI, Rule 1(3) of Civil Procedure Code demonstrates that when a party prays for sum-moning of a witness to the Court, then he has to assign sufficient and adequate reasons for seeking assistance of the Court for summoning the witness and since the application preferred on behalf of the plaintiff under Order XVI, Rule 1(3) of Civil Procedure Code assigns adequate reasons, which are based upon the inability of the plaintiff to keep the witness pres