Lakshmidevamma alias Venkatalakshmi vs D.V. Nanjundaswamy and Others

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondents. The petitioner is the plaintiff No. 2 before the trial Court in a suit for partition and separate possession. During the course of the trial, the petitioner had filed I. A. No. 28 which was under Order XVI Rule 6 of The Code of Civil Procedure, 1908 seeking issuance of summons to the Commissioner, City Municipal Council, Chintamani to produce certain documents. That application having been allowed, me trial Court directed issuance of summons to the witness namely the Commissioner, City Municipal Council, Chintamani for production of documents as called for by the plaintiff, if process fee was paid in the Office and posted the matter for cross-examination of D.W. 1 by 3.4.2009. The order was dated 28.3.2009. The counsel for the petitioner submits that on 3.4.2009 the plaintiff sought to pay the process fee in Court when the case was called out. However, the trial Court took exception to the fact that there was an order dated 28.3.2009 to pay the process but the process fee was sought to be paid as on 3.4.2009 and accordingly held that the plaintiff had not complied with the direction issued earlier and proceeded to reject I.A. No. 28. It is this which is sought to be quashed.

From a reading of the order dated 28.3.2009, it is not clear that the petitioner was required to pay the process fee on the very day. However, the petitioner having sought to tender process fee on 3.4.2009, it ought not to have been a ground for rejection of I.A. No. 28, which had been allowed earlier after assigning reasons. The delay, even if it was to be construed as a delay on the part of the plaintiff, in tendering process is not inordinate nor does it cause any kind of inconvenience to the respondent or to the Court. Therefore, the order is untenable. Hence, the writ petition is allowed. The order dated 3.4.2009 recalling the order on I.A. No. 28 is quashed. The trial Court shall issue summons as directed on I.A. No. 28.