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2013 DIGILAW 560 (HP)

Surinder Mohan Katwal v. Kaul Singh Thakur

2013-06-18

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This petition is directed against the order dated 23.1.2013 passed by the learned Civil Judge (Senior Division), Una in C.S.R.B.T. No. 42/09/05 whereby an application under order 16 rule 10 of the CPC filed by the petitioner has been dismissed. "Key facts" necessary for the adjudication of this petition are that Sh. Vijay Kumar Chopra was directed to be summoned as a witness vide order dated 4.9.2009. The case was fixed for 17.11.2009. The Presiding Officer was on leave on 17.11.2009. The case was listed for 26.2.2010. The summons issued to Vijay Kumar Chopra were received back on 21.4.2010. The case was ordered to be listed for 24.6.2010. The Presiding Officer was on leave on 24.6.2010. The Presiding Officer was again on leave on 28.9.2010. Thereafter, the case was fixed for 26.11.2010 on which fresh summons were ordered to be issued for 14.2.2011. The Presiding Officer was on tour on 14.2.2011. On 16.6.2011, two witnesses were examined. The evidence of the petitioner-plaintiff was closed. He approached this Court by way of CMPMO No. 484/2011. It was decided by this Court on 30.7.2012. The last opportunity was given to the petitioner to produce his evidence. Dasti service was also permitted. The presence of Vijay Kumar Chopra was also ordered through the process of Court. The parties were directed to appear before the trial court on 10.9.2012. The case was taken up by the learned Civil Judge (Senior Division) on 30.10.2012. According to this order, PW Vijay Kumar Chopra was already served through ordinary process as well as through alternative process, i.e. Fax, E-mail, speed post etc. and despite that he was not present. Bailable warrants in the sum of Rs. 2,000/- alongwith notice under order 16 rule 12 of the CPC returnable for 30.11.2012 were issued for procuring the presence of Vijay Kumar Chopra. The service was to be effected through special messenger. The matter was listed on 30.11.2012. Vijay Kumar Chopra did not appear. The trial court came to the conclusion that Vijay Kumar Chopra cannot be served in an ordinary process. Warrant of arrest was issued for procuring the presence of Vijay Kumar Chopra by an officer not below the rank of A.S.I. The service was to be effected through special messenger. Vijay Kumar Chopra did not appear. The trial court came to the conclusion that Vijay Kumar Chopra cannot be served in an ordinary process. Warrant of arrest was issued for procuring the presence of Vijay Kumar Chopra by an officer not below the rank of A.S.I. The service was to be effected through special messenger. A letter was ordered to be written to the Superintendent of Police, Una for procuring the presence of Vijay Kumar Chopra on 23.1.2013. It has also come in the order dated 30.11.2012 that the learned counsel for the petitioner-plaintiff apprised the court that in case the petitioner-plaintiff failed to produce his witnesses in the court, the evidence of the plaintiff shall be closed by the order of the Court. 2. The petitioner moved an application under order 16 rule 10 of the CPC for procuring the presence of PW Vijay Kumar Chopra through issuance of attachment of moveable property and issuance of proclamation. Thereafter, the matter came up before the learned trial court on 23.1.2013. The application preferred by the petitioner under order 16 rule 10 of the CPC was dismissed and the evidence was closed. The defendant's witnesses were ordered to be summoned by filing P.F., D.M. etc. within a week for 8.3.2013. The present petition has been filed against the order dated 23.1.2013. 3. Mr. N.K. Thakur, learned Senior Advocate has vehemently argued that the trial court has failed to exercise the jurisdiction vested in it. He further contended that it was the duty of the court to procure the presence of PW Vijay Kumar Chopra. He has further contended that the petitioner has taken all the steps by depositing P.F. etc. for procuring the presence of PW Vijay Kumar Chopra. He has lastly contended that since Vijay Kumar Chopra has failed to appear before the court, proclamation order followed by issuance of bailable and non-bailable warrants and ultimately the property of Vijay Kumar Chopra was ordered to be attached instead of closing the evidence of the plaintiff. 4. Mr. Anup Rattan has supported the impugned order passed by the trial court. 5. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 6. Two witnesses were examined on 16.6.2011. The petitioner was given last opportunity to summon the witnesses as per order of this Court passed in CMPMO No. 484/2011 dated 30.7.2012. Mr. Anup Rattan has supported the impugned order passed by the trial court. 5. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 6. Two witnesses were examined on 16.6.2011. The petitioner was given last opportunity to summon the witnesses as per order of this Court passed in CMPMO No. 484/2011 dated 30.7.2012. Dasti service was also permitted. The matter was taken up on 30.10.2012. PW Vijay Kumar Chopra was duly served by ordinary process as well as through alternative process, i.e. Fax, E-mail, speed post etc. In view of this, bailable warrants in the sum of Rs. 2,000/- alongwith notice, under order 16 rule 12 of the Code of Civil Procedure, were issued returnable for 30.11.2012. PW Vijay Kumar Chopra did not appear despite the issuance of bailable warrants. Accordingly, on 30.11.2012, warrants of arrest to be executed not below the rank of A.S.I. were ordered to be issued by the Civil Judge (Senior Division) on 30.11.2012 for 23.1.2013. A letter was also ordered to be written to the Superintendent of Police, Una. However, the fact of the matter is that despite the coercive method adopted by the Civil Judge (Senior Division), presence of PW Vijay Kumar Chopra could not be procured. 7. It is the responsibility of the Court to see that the process issued by it is duly served and the person for whose appearance process is served does appear in the court to give evidence. Petitioner has taken all the necessary steps for the presence of PW Vijay Kumar Chopra. He has tried to serve him by way of ordinary process as well as through alternative process, i.e. Fax, Email, speed post, bailable and non-bailable warrants. In view of this, the learned Single Judge (Senior Division) has not invoked the provisions of order 16 rule 10 of the CPC in its letter and spirit. The trial court should have invoked the provisions of order 16 rule 10(2) of the CPC ordering proclamation to be fixed on outer door or other conspicuous place of the house in which he was residing and in case PW Vijay Kumar Chopra had not appeared in that eventuality, bailable or non-bailable warrants were to be issued. Thereafter, in case PW Vijay Kumar Chopra had still not appeared then the order of attachment of his property was required to be passed. Thereafter, in case PW Vijay Kumar Chopra had still not appeared then the order of attachment of his property was required to be passed. The trial court has firstly issued bailable and non-bailable warrants without ordering service of PW Vijay Kumar Chopra by proclamation. 8. The trial court has over looked section 32 of the CPC as well. Section 32 reads thus: 32. Penalty for default The Court may compel the attendance of any person to whom a summons has been issued u/s 30 and for that purpose may- (a) issue a warrant for his arrest; (b) attach and sell his property; (c) impose a fine upon him 1[not exceeding five thousand rupees]; (d) order him to furnish security for his appearance and in default commit him to the civil prison. 9. The trial court was required to take all the necessary steps for procuring the presence of PW Vijay Kumar u/s 32 read with order 16 rule 10 of the Code of Civil Procedure. 10. Learned Single Judge of Punjab and Haryana High Court in M/s. National Rice and Dal Mills versus The Food Corporation of India, AIR 1972 Punjab and Haryana 163 has held that it is the duty of the court to enforce attendance of the witnesses summoned by the parties, if necessary by coercive process and in the interest of justice it can do so by adjourning the case from time to time. 11. Learned Single Judge of this High Court in Sohan Singh and Co. Vs. Mohammad Aishak Tyagi, AIR 1973 HP 39 has held that when the court does not enforce the attendance of the witnesses duly served and closes the defendant's evidence it fails to exercise jurisdiction vested in it and is liable to be corrected in revision. Learned Single Judge has held as under: 4. It was contended by the learned counsel that no application was moved by the defendant to procure assistance of the Court under order 16. But such an application was not required to be given. When summonses were duly issued by the Court and properly served upon the witnesses, the Court itself could initiate attendance of witnesses under order 16 when obviously the defendant could not proceed with his own statement unless the necessary documents were available in the Court. But such an application was not required to be given. When summonses were duly issued by the Court and properly served upon the witnesses, the Court itself could initiate attendance of witnesses under order 16 when obviously the defendant could not proceed with his own statement unless the necessary documents were available in the Court. Under order 16, rule 20, the Court could pronounce judgment only if the party to the suit refused without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power. Such was never the situation here, and, therefore, judgment could not be pronounced under rule 20. Similarly under order 17, rule 3, as well, the Court could not decide the four issues on merit because it could not be stated that the defendant had failed to produce his evidence, or to cause the attendance of his witnesses, or to perform any other Act necessary to the further progress of the suit, for which time was allowed by the Court. Therefore, any decision on merit arrived at for the four preliminary issues was unjustifiable and was the result of a wrong exercise of jurisdiction. 12. Learned Single Judge of the Rajasthan High Court in Smt. Uchhabkanwar and Another Vs. Legal Representatives of Ramswaroop and Others, AIR 1995 Raj 209 has held that the expression "may" in section 32 is mandatory and when the court making up its mind to summon witness, he should always be compelled to attend court to give evidence, taking all measures, contemplated u/s 32 of the Code of Civil Procedure. Learned Single Judge has held as under: 7. The second argument of learned counsel appearing for respondents Nos. 1 and 2 is that the word "may" u/s 32 of the Code is directory and not mandatory. According to learned counsel appearing for opposite parties Nos. 1 and 2, it is not mandatory for the subordinate Court to take all the measures provided u/s 32 of the Code of Civil Procedure. As a matter of fact, according to learned counsel, it is the discretion of the Court to take any one of the measures and may refuse to take further measures, as contemplated u/s 32 of the Code. 8. I am unable to accept the aforesaid argument advanced on behalf of learned counsel for the respondents Nos. 1 and 2. As a matter of fact, according to learned counsel, it is the discretion of the Court to take any one of the measures and may refuse to take further measures, as contemplated u/s 32 of the Code. 8. I am unable to accept the aforesaid argument advanced on behalf of learned counsel for the respondents Nos. 1 and 2. It must be taken to be settled principle of rule of interpretation that wherever the word "may" is used in respect of Courts, it always mean "shall". Out of respect, the Legislature has developed a convention to use the word "may" in place of "shall". Therefore, the word "may" used u/s 32 of the Code is not 'directory', as contended by learned counsel for the opposite parties. In my considered opinion, the word "may" used u/s 32 of the CPC is 'mandatory. 10. As a matter of fact, Section 32 gives a right to the Judicial Officer to summon a witness and Order XVI, Rules 10 and 12 of the Code provide a procedure to secure attendance of the witness. 13. Learned Single Judge of Rajasthan High Court in Suresh Nath Modi Vs. LR's of Jorawarmal, AIR 1999 Raj 357 has held that once a party has moved an application for issue of process against a witness and the court allows such application and issues process to compel the appearance of the witness, it becomes the duty of the court to see that the process issued by it is duly served and the person for whose appearance the process was issued, does appear in the court to give evidence. Learned Single Judge has held as under: 10. Learned Single Judge has held as under: 10. In my considered view, once a party has moved an application for issue of process against a witness and the Court allows such application and issues process to compel the appearance of the witness, it becomes the duty of the Court to see that the process issued by it is duly served and the person for whose appearance the process was issued, does appear in the Court to give evidence or to produce the document as the case may be unless the party agrees on his part process be issued is shown to have committed such negligence in filing process-fee and notices or summons as may fall within the definition of abuse of the process of Court or he (sic) party applying for the summons or warrant were not represents before the Court that it would produce the witness itself or the witness himself appears in the Court or the issue of process against him for any other just cause is rendered unnecessary. 11. In the instant case, the petitioner did not volunteer to produce the witnesses himself. There is no observation by the learned District Judge that the plaintiff-petitioner abused the process of the Court by not filing the process-fee or summons or that he failed to perform any act which he was required to perform for enforcing the attendance of the witnesses. There is nothing to show that the witnesses themselves undertook to appear in the Court on the next date of hearing or it was rendered unnecessary to take action against the defaulting witnesses under Rule 10 of Order 5 CPC. 12. In these circumstances, the order dated 17-1-1998 was improper. It deserves to be quashed and is hereby quashed and set aside. 14. Learned Single Judge of Punjab and Haryana High Court in Raghbir Singh Vs. Dina Nath has held that the parties cannot be permitted to suffer for the non-appearance of the witnesses who have been duly served and do not appear inspite of the service of summons upon them. The procedure is meant for advancing and not obstructing the cause of justice. Learned Single Judge has held as under: 2. Admittedly, the suit has already grown pretty old as it was instituted in the year 1996. Issues were framed in April, 1997. The procedure is meant for advancing and not obstructing the cause of justice. Learned Single Judge has held as under: 2. Admittedly, the suit has already grown pretty old as it was instituted in the year 1996. Issues were framed in April, 1997. Ever since then the plaintiff had been afforded reasonable opportunities for producing his evidence, but he has failed to conclude the same. Whether the impugned order can be termed as legal and proper? According to Mr. S.S. Rangi, learned Counsel for the petitioner, two witnesses namely Smt. S.K. Dhaliwal, wife of the stamp vendor and Dr. Atut Kumar Singla handwriting and finger expert, are left to the examined. Report Annexure P-2 dated May 14.5.1998 revealed that Smt. S.K. Dhaliwal, wife of the stamp vendor was served for June 9, 1999. but she failed to appear on the date fixed. The impugned order closing the evidence was also of the same date. If a summoned witness who has been duly served fails to appear before the Court, then it is the duty of the court to secure his presence. Order 16 Rules 8 to 10 of the CPC provide the procedure for procuring the attendance of the summoned witnesses. The object of the rule 10 is to enable the Court to help the parties to compel attendance of recalcitrant witness, who even though served, fails to appear without lawful excuse. It is the duty of the Court to enforce, if necessary, by coercive processes provided by the rule, attendance of witnesses required by parties. But the parties cannot be made to suffer for the non-appearance of the witnesses who have been duly served and do not appear in spite of the service of summons upon them. Procedure is meant for advancing and not obstructing the cause of justice. 3. As a logical corollary to this consideration, it must be held that order under revision needs not to be nullified. The Civil Revision is, therefore, allowed and the impugned order is set aside. The trial Court is directed to grant two effective opportunities to the petitioner to examine the aforesaid witnesses subject to payment of costs of Rs. 500/-. In case the witnesses do take recourse to the provisions envisaged under Order 16 of the CPC to secure their attendance. 15. The trial Court is directed to grant two effective opportunities to the petitioner to examine the aforesaid witnesses subject to payment of costs of Rs. 500/-. In case the witnesses do take recourse to the provisions envisaged under Order 16 of the CPC to secure their attendance. 15. Learned trial court has committed material irregularity in not compelling the attendance of PW Vijay Kumar Chopra as per section 32 read with order 16 rule 10 of the Code Civil Procedure. The court cannot show its helplessness. All out efforts are required to be made in accordance with law for procuring the presence of witnesses. The trial court has failed to procure the presence of PW Vijay Kumar Chopra and has erred in law by dismissing the application preferred under order 16 rule 10 of the Code of Civil Procedure. He could not close the evidence of the plaintiff. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Order dated 23.1.2013 is set aside. There shall be a direction to the trial court to compel the attendance of the witness as contemplated u/s 32 read with order 16 rule 10 of the Code of Civil Procedure. It is made clear that in case PW Vijay Kumar Chopra does not appear despite the issuance of proclamation, it shall be open to the trial court to issue non-bailable warrants and the same shall be served through the Superintendent of Police, Una. The trial court can also attach the property of PW Vijay Kumar Chopra for non-appearance. Pending application(s), if any, also stands disposed of. No costs.