L. Rughnath Das vs M. Sant Shah

J.N. Wazir, C.J.—This is a revision application directed against an order of the trial court dated 18th October, 1963 refusing to issue summonses to the witnesses whom the Defendant wanted to produce in defence.

The counsel for the Petitioner argued that the trial Court was not right in casting liability on the Defendant to accompany the process server to

get his witnesses served and that if the Defendant failed to accompany the process server the trial Court was not justified in refusing to issue fresh summonses to the Defendant's witnesses. It appears that on 27th August, 1963 the Presiding Officer was not present and an unsigned order of that date shows that the Defendant was asked to accompany the process server and get the witnesses served. On 18th October, 1963 the witnesses did not appear and the trial Court refused to summon them on account of failure of the Defendant to accompany the process server to get the summonses served. It has been pointed out time out of number that a Court cannot cast an obligation on a party to accompany the process server and get the witnesses served. Order 16 Rule 1, is the relevant provision of the Code of CPC and it lays down as follows:

At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to person whoso attendance is required either to give evidence or to produce documents.

There is no provision in the CPC under which a Court can cast an obligation on a party to accompany the process server or to get the witnesses

served personally. In case a party offers himself to accompany the process server he may be asked to do so but the Court cannot direct a party to accompany the process server and if he fails (to do so it cannot close his evidence or refuse to issue fresh summonses to the witnesses. The party can be asked to deposit the process fee and diet money for the witnesses and to give their correct residential particulars and it is for the process server to go and to get the witnesses served on the addresses given by the party. If the party fails to carry out the instructions of the court and tries to delay the disposal of the case by giving wrong addresses of the witnesses or by not depositing process fee and diet money the Court is not helpless in such matters and can under its inherent powers pass such orders as it deems proper. This has been laid down in Kumar Basant Narain

Singh and Others Vs. The State of Bihar, .

As a matter of general rule the Court is bound to issue summonses to the witnesses if an application is made for summoning them at any time after the institution of the suit and before its decision. The Court is not entitled to refuse to issue summonses to the witnesses on the ground that the application was made at a very late stage though the Court is not bound in all cases to adjourn the hearing of the case to enable the wit nesses to attend on the date of the hearing. But there is an exception to this general rule and that exception is that where the Court thinks that the prayer for issue of summonses to witnesses has not been made bona fide or has been made as an abuse to the process of the Court or the prayer is

vexatious, it has got inherent jurisdiction to refuse the prayer. The prayer is inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure.

Held from the facts of the case, it was manifest that the application of the Plaintiffs was not bona fide and that they were guilty of willful laches and negligence and therefore the order of the court directing the Plaintiffs to take out dasti summons to their witnesses was not wrong.

In the present case as pointed out above, the Defendant was ordered to accompany the process server by some official of the Court and that

order was not signed by the presiding Officer. Moreover, the Defendant had deposited the process fee and diet money for the witnesses whom he wanted to examine in this case. Under these circumstances the trial Court ought not to have refused to issue summonses if the witnesses did not appear in Court. The learned Counsel for the Respondent has drawn my attention to the fact that the Defendant had not furnished correct particulars of the witnesses whom he wanted to produce and therefore the trial Court had no other option but to call upon the Defendant to produce the witnesses on his own responsibility. It appears that previously an order was passed by which the Defendant) was asked to give correct particulars of the witnesses. The process server had made a report that the parentage of some of the witnesses was not correct and therefore they could not be served. The Defendant was not careful enough in finding out the correct particulars of the witnesses whom he wanted to produce. Now the counsel for Defendant Petitioner submits that his client may be given an opportunity to produce the witnesses and that he will accompany the process server and get the witnesses served on his own responsibility. This is an offer made on behalf of the Defendant himself and the trial Court will certainly ask the Defendant to deposit the process fee and diet money and call upon him to accompany the process server in order to get the witnesses served. The counsel on the other side has no objection if the Defendant is allowed to examine the remaining witnesses provided he does so without any further delay. The trial Court shall see that the witnesses whom the Defendant wants to produce are examined as early as possible. The revision application is disposed of accordingly.

Counsel for the parties are directed to cause their clients to appear before the trial Court on 30th December, 1963 for further directions in this

case in the light of observation made above.

There will be no order as to costs.