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2014 DIGILAW 131 (ORI)

Abhimanyu Das v. Dhobani Das

2014-02-19

S.K.MISHRA

body2014
JUDGMENT S.K. MISHRA, J. : In this writ petition, the petitioner being the defendant No.1 in Title Suit No.729 of 2001 of the Court of Civil Judge (Junior Division), First Court, Cuttack assails the order dated 12.08.2013 rejecting the application to issue warrant for the attendance of D.W.2- Biswaranjan Sahoo. 2.The facts of the case leading to filing of the writ petition are that the defendant-writ petitioner examined himself and then examined another witness namely Biswaranjan Sahoo as D.W. No.2. He tendered evidence affidavit and was cross-examined in part and the case was posted to another day for further cross-examination of that witness. The aforesaid witness in spite of approaches made by the defendant did not turn up to the Court for further cross-examination, on the other hand, he expresses that unless summons were issued from the trial Court to him he would not attend the trial Court. 3.In the aforesaid circumstances, the defendant has filed an application on 25.07.2013 praying therein for procuring attendance of said D.W.2 before the trial Court either by issue of warrant of arrest or otherwise at the expenses of the defendant. The plaintiffs have filed their objection to such petition on 28.06.2013. It is further stated that Sri P.K. Biswal, Advocate, who was engaged for defending the suit on behalf of the defendants, unexpectedly expired and the case was handled by his Junior Associate Sri M.R. Tripathy. It is further stated that because of lack of experience to handle civil cases, on 24.06.2013 the defendants engaged Mr. G.C. Das, Advocate and Vakalatnama was filed on that date. On 26.06.2013, a petition was filed by the defendant through his newly appointed Advocate praying for procuring attendance of D.W.2, who tendered his evidence affidavit and examined in chief and was cross-examined in part, but did not turn up before the Court for further cross-examination either by issuing warrant or otherwise. 4.Because of non-availability and absence of Shri G.C. Das, Advocate newly appointed on behalf of the defendant due to his ailment, the matter was taken up by Sri Tripathy and due to lack of knowledge, misguidance by other colleagues and annoyance of Court for hearing of the suit, in good faith hastily e filed petition for not pressing the application on 26.06.2013. Accordingly, the Court allowed the application and rejected the original application dated 26.06.2013 and posted the case to 27.06.2013 for hearing. Accordingly, the Court allowed the application and rejected the original application dated 26.06.2013 and posted the case to 27.06.2013 for hearing. Thereafter, on two occasions the petitions for time were filed by the defendant, which was allowed on payment of cost. In the meantime, Mr. G.C. Das, Advocate for the defendant recovered from his illness and he was satisfied that the suit could not be conducted/defended properly by junior Advocate Sri Tripathy, who could not satisfy the Court for procuring attendance of D.W.2, who tendered his evidence of examination-in-chief and cross-examined in part. Under such circumstance, they filed an application on 25.07.2013 for just and proper adjudication of the issues of the suit. 5.The plaintiffs filed their written objection. Their main objection is that the suit is a year-old case and if the petition of the defendant is allowed, it will run for uncertain period and the plaintiff will be harassed. It was further stated that without summons of the Court the defendant No.1 has called D.W.2 for his cross-examination. So, it is the duty of defendant No.1 to bring D.W.2 for his further cross-examination. Hence, it is objected that instead of procuring D.W.2, the defendant No.1 has filed the petition to issue warrant against him only to delay disposal of the case. The Court has not called D.W.2 to give evidence on behalf of the defendant. Only to linger the case, the defendant has adopted the process and thereby harassed the plaintiff. It is further pleaded that there is no provision in the Code of Civil Procedure, 1908, hereinafter referred as the ‘Code’ for brevity, to issue warrant to a witness to procure his attendance, where a party fails to procure the attendance of his witness, the procedure under Order XVII, Rule 3 of the Code should be followed. No provision is contemplated to issue warrant to witness for his procurement. In view of the factual background, the plaintiffs have prayed to reject the petition filed by the defendant-petitioner. 6.Learned Civil Judge (Junior Division), First Court, Cuttack, after examining the factual aspect of the case, rejected the application on merit on the ground of delay and lingering of the case for an uncertain period. Such order passed on 12.08.2013 is assailed in this writ petition. 6.Learned Civil Judge (Junior Division), First Court, Cuttack, after examining the factual aspect of the case, rejected the application on merit on the ground of delay and lingering of the case for an uncertain period. Such order passed on 12.08.2013 is assailed in this writ petition. The question remains for consideration is that whether a witness, who has been examined in part and later refuses to attend the Court on the request of the party can be summoned to appear in the Court. Has the party any forum of redressal for calling that witness to the witness box and whether the Court has any jurisdiction to issue notice/warrant for his appearance ? 7.Chapter XVI of the Code provides for summoning and attendance of witnesses. Rule 10 provides for the procedure where witness fails to comply with summons. It reads as follows : “10. Procedure where witness fails to comply with summons - (1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court - (a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons. (2) Where the Court sees reasons to believe that such evidence or production is material, and that such person has without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the documents at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. (3) In lieu of or at the time of issuing such proclamation or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12. Provides that no Court of Small Causes shall make an order for the attachment of immovable property.” From the aforesaid provision, it is seen that the Court has ample jurisdiction to issue proper summon/warrants to procure the attendance of the witness and in case there is non-compliance of the order passed by the Court, the Court may in his discretion issue warrant of arrest also. 8.In that view of the matter, this Court comes to the conclusion that the learned Civil Judge (Junior Division), First Court, Cuttack has failed to exercise the jurisdiction available to him under Order XVI, Rule 10 of the Code and, therefore, for the ends of justice, this Court invoke its jurisdiction under Article 227 of the Constitution and re-writes his order and allows the application filed by the petitioner on 25.07.2013. The parties are directed to appear before the learned Civil Judge (Junior Division) First Court, Cuttack on 03.03.2014. The writ petition is accordingly allowed. Petition allowed.