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Rajasthan High Court · body

2017 DIGILAW 1 (RAJ)

Vijay Devi v. Neeraj

2017-01-02

M.N.BHANDARI

body2017
JUDGMENT : M.N. Bhandari, J. 1. By this writ petition, a challenge is made to the order dated 8.8.2016 passed on an application under Order XVI Rule 7A of the Code of Civil Procedure. 2. Learned counsel submits that an application moved under Order XVI Rule 7A CPC has been rejected in ignorance of the fact that the witnesses sought to be summoned were none else but the listed witnesses. The list of the witnesses was given as per Order XVI Rule 1 CPC. In view of above, the court below should have allowed the application to summon the witnesses and the documents. 3. In view of above, impugned order dated 8.8.2016 deserves to be set aside. Reference of the judgment of this court in the case of "Darshan Devi versus Jaishri", SB Civil Writ Petition No. 12280/2016, decided on 8.9.2016 has been given. It is stated that similar issue was determined in favour of the petitioner therein. The prayer is accordingly made to allow the writ petition. 4. Learned counsel for plaintiff-non-petitioner submits that the application moved by the defendant-petitioner under Order XVI Rule 7A CPC has rightly been rejected by the court below. It is for the reason that if the witnesses are to be summoned, it can be after showing the purpose as provided under Order XVI rule 2 CPC. If any other witness is to be summoned, an application need to be made under Order XVI Rule 3 CPC. Order XVI Rule 7A CPC is for giving summons to a party for service. It is subject to compliance of Order XVI Rules 1 and 2 CPC. The petitioner failed to show purpose to summon the witness/s so as the documents thus the application was rightly rejected by the court below. To support the arguments, reference of the judgment of the Apex Court in the case of Mange Ram versus Brij Mohan & Ors., (1983) 4 SCC 36 has been given. 5. I have considered rival submissions of the parties and perused the record. 6. An election petition was preferred by the plaintiff-non-petitioner. The defendant-petitioner herein submitted an application to furnish list of witnesses. The subsequent application at Annexure-3 was submitted to summon the witnesses as well as the documents as it cannot be produced by the petitioner himself. 7. 5. I have considered rival submissions of the parties and perused the record. 6. An election petition was preferred by the plaintiff-non-petitioner. The defendant-petitioner herein submitted an application to furnish list of witnesses. The subsequent application at Annexure-3 was submitted to summon the witnesses as well as the documents as it cannot be produced by the petitioner himself. 7. Learned counsel for petitioner submitted that all the witnesses are the government employees thus are not under the command of the petitioner thus should have been summoned by the court. For appreciation of the arguments, Order XVI Rules 1(1) (2) and (3) and 7A CPC are quoted hereunder for ready reference - "ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES 1. List of witnesses and summons to witnesses.-(1) On or before such date as the court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. (2) A party desirous of obtaining an summons for the attendance of any person shall file in court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The court may, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. 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. (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. (4) If such summons, when tendered, is refused or if the person served refuses to sign an 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. (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." 8. As per Order XVI Rule 1 CPC, on or before the appointed date but not later than 15 days after the date on which issues are settled, the parties would furnish list of witnesses whom they want to summon either to give evidence or to produce documents. As per Rule 2, a party desirous to obtain any summon for attendance of a person would file an application stating the purpose for which the witness is proposed to be summoned. The perusal of the application at annexure-3 does not reveal any purpose to summon the witness/s or the documents. Since no purpose has been disclosed for summoning the witnesses and the documents, application was found to be incompetent and, accordingly, it was dismissed. 9. Learned counsel for petitioner has given reference of Order XVI Rule 7A CPC. As per Order XVI Rule 7A CPC, an application can be filed by any party for issuance of summons for attendance of any person and the court may permit such party to effect service of such summons on such person and shall deliver the summons to such party for service. 10. If the summons are sought on a witness after recording purpose, party is at liberty to serve the summons by themselves. 10. If the summons are sought on a witness after recording purpose, party is at liberty to serve the summons by themselves. Rule 7A cannot run counter to Order XVI Rule 1 and 2 CPC thus the application under rule 7A of Order XVI CPC can be filed only to seek summons for attendance of the persons to be served by the party himself and it is only when the required compliance of rules 1 and 2 of Order XVI CPC is made. In the instant case, petitioner has failed to show or disclose any purpose to summon the party or the documents thus court below has rightly dismissed the application and I do not find any illegality therein. 11. The reference of the judgment in the case of Darshan Devi (supra) has been given. Therein, rules 1, 2 or rule Order XVI of CPC have not been referred. The judgment is based on its own facts. Therein, the witness was not called by the court below as the inquiry report was already on record. The High Court did not find aforesaid reasoning to be tenable, hence, appropriate order was passed. The judgment of the Apex Court in the case of Mange Ram (supra) is relevant. Para 9 of the said judgment is quoted hereunder for ready reference - "9. If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court. When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of order XVI. When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of order XVI. The consequence is that where the witness summoned either to give evidence or to produce documents fails to attend or to produce the documents in compliance with such summons, the Court on being satisfied of the service as provided therein and is further satisfied that the person has without lawful excuse failed to honour the summons, the Court may issue is a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed in the manner therein provided. Simultaneously, 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 for such amount as it thinks fit. Even if thereafter the witness fails to appear, the Court may impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part, thereof, to be attached and sold as provided in Rule 12 of order XVI. In view of this legal consequence ensuing from the issuance of a summons by the Court and failure to comply with the same, the scheme of Rules 1, 1A of order XVI and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to examine and procure presence with the assistance of the Court. There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the presence of a witness, obviously the party can produce such witness on the date of hearing and the Court cannot decline to examine the witness unless the Court proposes to act under the proviso to sub- sec. There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the presence of a witness, obviously the party can produce such witness on the date of hearing and the Court cannot decline to examine the witness unless the Court proposes to act under the proviso to sub- sec. (1) of Sec. 87 of the 1951 Act' which enables the Court for reasons to be recorded in writing, to refuse to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. It, therefore, unquestionably transpires that the obligation to supply the list of witnesses within the time prescribed under sub-rule (1) of Rule 1 of order XVI is in respect of witnesses to procure whose presence the assistance of the Court is necessary. And this ought to be so because the Court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the Court. This not only explains the necessity of setting out the names of witnesses in the list but also the gist of evidence of each witness. If mere omission to mention the name of a witness in the list envisaged by sub-rule (1) of Rule 1 of order XVI would enable the Court to decline to examine such witness, Rule 1A of order XVI would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub-rule (1) and who can be produced without the assistance of the Court. Viewed from this angle, Rule 1A becomes wholly redundant. Viewed from this angle, Rule 1A becomes wholly redundant. If it is obligatory upon the party to mention the 1 names of all witnesses irrespective of the fact whether some or all of them are to be summoned and even the names of those whom the party desires to produce without the assistance of the Court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1A would have given a clear legislative exposition in that behalf and the marginal note of Rule 1A clearly negatives this suggestion. Marginal note of Rule 1A reads as 'Production of witnesses without summons' and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1. If it was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under Rule 1. Rule 1A of order XVI clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1 of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not." 12. The judgment of the Apex Court covers the issue and otherwise compliance of sub-rules (1) and (2) of Rule 1 of Order XVI CPC is to be made before summoning of the witness. In the instant case, application does not give purpose to summon the witness. Accordingly, I do not find any merit in this writ petition. The judgment of the Apex Court covers the issue and otherwise compliance of sub-rules (1) and (2) of Rule 1 of Order XVI CPC is to be made before summoning of the witness. In the instant case, application does not give purpose to summon the witness. Accordingly, I do not find any merit in this writ petition. Hence, it is dismissed.