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2012 DIGILAW 1478 (ALL)

RAVI BALA GARG v. TABASSUM

2012-07-06

V.K.SHUKLA

body2012
V.K. Shukla, J. Present writ petition has been filed under Article 226/227 of the Constitution of India, requesting therein that the concerned court wherein suit is pending be directed to examine Sri A.K. Srivastava, Advocate either through the Commission at the cost of the petitioners or to summon him through the process of Court itself and not be dasti summons to give evidence. Further request has been made to quash the order dated 24.03.2012 and 03.04.2012 passed in original suit No.274 of 2004. From record, it is reflected that original suit No.274 of 2004 had been filed for declaration that Freehold Deed dated 29.03.2004 and the consequential action based on the same be declared as null and void along with various other reliefs. Petitioners claim that they are the defendants in the said suit; they have filed written statement and additional written statement. Petitioners have contended that despite decree dated 28.02.1979 passed in original suit No.231 of 1978 and the injunction order dated 19.07.2003 passed in original suit No.388 of 2003, Freehold Deed has been obtained on 29.03.2004 and in this background, it has been stated that M.C. Gupta had colluded with the defendants of original suit No.223 of 1978 and Sri A.K. Srivastava, Advocate, who had been appearing, was the best person to substantiate such facts as such steps be undertaken for summoning A.K. Srivastava. The trial court seized of the matter proceeded to pass an order for summoning of Sri A.K. Srivastava by way of dasti summons. Sri A. K. Srivastava appears to have been reluctant in appearing pursuant to dasti summons and accordingly affidavit of service had been filed and request was made to summon him through the process of Court or examine him through Commission. Said request has been turned down. At this juncture, present writ petition has been filed. Sri Ajit Kumar, learned counsel for the petitioners, contended that once in the past dasti summons had been issued for summoning A.K. Srivastava as witness and A.K. Srivastava had refused to appear pursuant to the same, then it was duty of the Court to have ensured his presence either through the Commission or through the process of the Court, and consequently, the trial court has failed to exercise the authority vested in him, as such the order passed is bad. Countering the said submissions Sri Ashish Kumar Singh, Advocate, contended that sole endeavour of the petitioners is to delay the proceedings by all means, whereas there is precise order passed by this Court to conclude the proceedings at the earliest and submits that in this background no interference be made. After respective arguments have been advanced, factual situation which so arises in the present case, is that the plaintiff petitioners have been requesting for summoning of Sri A.K. Srivastava as one of the witnesses. Trial court accepted the said prayer and proceeded to pass order for ensuring his presence through dast summons. Thereafter, an application 308C dated 30.03.2012 had been moved requesting therein that attempt was made to serve Sri A.K. Srivastava, Advocate, but he refused to accept the summons and further mention was made that Sri A.K. Srivastava had no objection to be examined through Commission. Application to the same effect had also been moved in the past on 24.03.2012. Said application had been disposed of with direction to issue dasti summons for ensuring presence of A.K. Srivastava. Order XVI of the Code of Civil Procedure deals with summoning and attendance of the witnesses. Rule 7A of the said Order deals with summons given to party for service. For the sake of convenience, Rule 7A of Order XVI is being extracted below: "7A. Summons given to party for service. - ( 1) The Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service. ( 2) The service of such summons shall be effected by or on behalf of such party by delivering or tendering to the witness personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court. ( 3) The provisions of rules 16 and 18 of Order V shall apply to a summons personally served under this rule as if the person effecting service were a serving officer. ( 3) The provisions of rules 16 and 18 of Order V shall apply to a summons personally served under this rule as if the person effecting service were a serving officer. ( 4) If such summons, when tendered, is refused or if the person served refuses to sign and acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant. ( 5) Where a summons is served by a party under this rule, the party shall not be required to pay the fees otherwise chargeable for the service of summons." A bare perusal of the provisions quoted above would go to show that sub-rule ( 4) of Rule 7A of Order XVI provides that If summons tendered, is refused or if the person served refuses to sign and acknowledgment of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant. Thereafter Rule 8 deals with the procedure how the summons are to be served. Rule 9 deals with time for serving the summons and Rule 10 deals with the procedure where the witness fails to comply with summons. In the present case, factual situation is that the concerned trial court wherein suit is pending had agreed in principle to issue summons for production of A.K. Srivastava as a witness, and requisite order had been passed on 15.04.2011 followed by order dated 02.01.2012, and thereafter an application was made on 29.03.2012 and 30.03.2012, clearly and categorically mentioning therein that A.K. Srivatava was not prepared to come on the summons so issued and as such steps be undertaken for service of summons through court. Said application has been considered and rejected. Said application has been considered and rejected. The orders dated 29.0.2012 and 03.04.2012 cannot be subscribed on this score for the simple reason that once A.K. Srivastava has refused to appear on the basis of summons, then as per provisions of sub-rule ( 4) of Rule 7A of Order XVI of the Code of Civil Procedure, on request being made steps were required to be taken by the court for ensuring his presence not by way of dasti summons, and thus, the opinion of the Court below cannot be approved of. Action has to be taken on in view of the provisions of sub-rule ( 4) of Rule 7A of Order XVI of the Code of Civil Procedure. In view of this, present writ petition succeeds and the same is allowed. The orders dated 29.03.2012 and 03.04.2012 passed by the court below is set aside and the Court is directed to reconsider the matter keeping in view the provisions of sub-rule ( 4) of Rule 7A of Order XVI of the Code of Civil Procedure. Sri Ashish Kumar Singh, learned counsel for the petitioners further states that directives be issued to the court below to conclude the proceedings at the earliest, as proceedings are being delayed. Record in question reflects that for deciding the present matter repeated orders have been passed by this Court. Once there are orders for expeditious decision of the suit, then there is no necessity of reiterating the same, and the trial court seized of the matter is conscious of the fact that directives are there for early disposal of the matter shall make all endeavour to get the suit decided at the earliest.