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2011 DIGILAW 1977 (HP)

Himanshu Sharma v. Kishori Lal

2011-04-04

DEEPAK GUPTA

body2011
JUDGMENT Deepak Gupta, J. 1.This petition under Article 227 of the Constitution of India is directed against the order dated 17.2.2011 whereby the learned Trial Court closed the evidence of the petitioner and did not accept the prayer that the witness Sh.Bishambar Jhagta be served by issuing proclamation. 2.At the outset, it would be pertinent to mention that earlier the evidence of the petitioner was also closed and the petitioner filed a petition seeking permission to examine the Local Commissioner only and this petition was allowed by this Court in the following terms:- “The petitioner shall take dasti summons for the service of the Local Commissioner and it shall be his duty to serve the Local Commissioner. In case the Local Commissioner does not appear despite service of summons then the Court can take coercive steps to ensure his presence.” 3.According to Sh.Lalit Kumar Sharma, learned counsel for the petitioner, Sh.Bishambar Jhagta, Local Commissioner avoided receiving the summons and, therefore, the petitioner was compelled to move this application. 4.On the other hand, Sh.Neeraj Gupta, learned counsel for the respondents submits that the record shows that dasti summons were handed over to the petitioner on 6.1.2011 and as per the report of the Process Server dated 16.1.2011, three attempts were made on 16.1.2011 itself to serve the witness whereas the case was fixed for 17.2.2011. Sh.Gupta urges that no steps were taken between 6.1.2011 to 16.1.2011 to serve the witness. 5.This Court cannot, on the basis of the material on record, decide this factual dispute. The fact remains that in the application which was filed by the petitioner, it was specifically alleged that after 6.1.2011, the petitioner alongwith the process server Krishan Chand had gone to the house of the witness but some lady came out and told them that the witness had gone to his native village. Thereafter, it is also alleged that on 7.2.2011, the witness was present in the office of the Deputy Commissioner, Solan where he was requested to receive the summons which he refused to do so. The learned Trial Court has not decided the question whether these averments made in the application were right or wrong. 6.Technically, it may be true that the Local Commissioner was not served but if the allegations made in the application are correct then he knew about the fact that he was being summoned as a witness. The learned Trial Court has not decided the question whether these averments made in the application were right or wrong. 6.Technically, it may be true that the Local Commissioner was not served but if the allegations made in the application are correct then he knew about the fact that he was being summoned as a witness. Without going into the other details, one more opportunity is granted to the petitioner to serve the Local Commissioner subject to payment of Rs.1000/- as costs. 7.The parties through their counsel are directed to appear before the learned Trial Court on 8.4.2011. The Court shall fix the case for recording the evidence of the Local Commissioner between 9th and 18th May, 2011 on a date which is convenient to it. On the petitioner taking steps, dasti summons for service of the Local Commissioner will be handed over to the petitioner on or before 13.4.2011. The process server is directed to go to the house of the Local Commissioner and shall submit his report immediately to the Court. In case his report is of the type similar to the one given then the Court shall take coercive steps to ensure the presence of the witness but in any event, it shall be ensured that the witness is present on the date fixed for his evidence. 8.The petition is disposed of in the aforesaid terms. No order as to costs.