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2021 DIGILAW 2961 (MAD)

Meenakshi v. Ayyar

2021-10-29

K.MURALI SHANKAR

body2021
ORDER : The Civil Revision is directed against the order passed in I.A.No.2 of 2020 in O.S.No.75 of 2016, dated 20.01.2021, allowing the petition filed under Order 16 Rule 10(3) of the Code of Civil Procedure. 2. The revision petitioner is the plaintiff and she filed the suit in O.S.No.75 of 2016, against the first defendant and one Alagumalai, claiming the relief of declaration that the suit property belongs to the plaintiff and for consequential permanent injunction restraining the defendants and their men from in any way interfering with the plaintiff's peaceful possession and the enjoyment of the suit property and also for mandatory injunction for removal of the wall constructed by encroaching upon the suit property. The defendants have filed their written statement and are contesting the suit. 3. It is evident from the records that the plaintiff has been claiming title to the suit property on the basis of a Will, dated 22.05.2007 alleged to have been executed by her mother-in-law Radha and that the plaintiff, after examining herself as P.W.1, had examined two attesters of the said Will namely Balusamy and Rani as P.W.2 and P.W.3 respectively and thereafter, plaintiff side evidence was closed. 4. The first defendant, after examining himself as D.W.1, has taken summons to the other two attesting witnesses of the said Will, namely Tmt.Kaliswari and Tmt.Mariammal for giving evidence, that since the said two witnesses after the receipt of summons, have not turned up. The first defendant has then, by alleging that the said two witnesses after receiving the summons, have failed to appear before the Court and they have violated the orders of the trial Court and that therefore, arrest warrant has to be issued against the said two witnesses, filed the above petition under Order 16 Rule 10(3) of CPC. The learned District Munsif, after enquiry, has passed the impugned order dated 20.01.2021 allowing the said petition and thereby directed to arrest the said two witnesses and produce them before the Court. Challenging the said order, the plaintiff has come forward with the present revision. 5. At the outset, it is necessary to refer the Order 16 Rule 1 CPC. “ORDER XVI-SUMMONING AND ATTENDANCE OF WITNESSES 1. Challenging the said order, the plaintiff has come forward with the present revision. 5. At the outset, it is necessary to refer the Order 16 Rule 1 CPC. “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 person for their attendance in Court. (2) A party desirous of obtaining any 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 part shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule(1).” Order 16 deals with summons and attendance of witnesses. Though Sub Rule 1 contemplates that the parties shall present their list of witnesses whom they proposed to examine on their side or for production of documents within 15 days from the date on which, the issues are framed, Sub Rule 2 indicates that the party desirous of obtaining summons for the witness has to file an application stating the purpose for which, the witness is proposed to be summoned. 6. A Division Bench of Kerala High Court in N.Yovas and another Vs. 6. A Division Bench of Kerala High Court in N.Yovas and another Vs. Immanueal Jose and others reported in AIR 1996 Kerala 1, has held that the object of disclosing such purpose is to be enable the Court to decide whether examination of such witness is of material benefit to decide the dispute, that the Court has to pass an order on the application and therefore, a duty is cast on the Court to consider whether the purpose of citing the particular witness is to speak to any material fact and that if the Court is not so satisfied, the Court is not obliged to issue summons to the said witness. 7. A single Judge of Jammu and Kashmir High Court in Yashbal Sawhney Vs. Gandotra Traders and others reported in AIR 1995 Jammu and Kashmir 32, has held as follows: “7. ..... The last but not the least of the considerations is that a party making an application under Order 16, Rule 1 and desirous of obtaining summons for a person shall, in his application, state the purpose for which the witness is proposed to be summoned. Taking a que from the words used in Order 16, Rule 1(2), C.P.C. it will be pertinent to observe that the same relate to singularity of the noun 'witness' or 'person'. The words used are "for the attendance of any person". The grammer of the sub-rule suggests that against every person supposed to be called as a witness, the purpose of his production should be shown. Not that a long list of witness will be detailed out after stating that some questions are to be proved. Sub-rule (2) has to be read with sub-rule (1) in a conjective manner, where two purposes of calling witnesses are contemplated. These purposes are giving evidence or producing documents. Reading Sub-rules (1) and (2) together it will be safe to hold that against every witness, the party proposing to call that witness has to indicate as to for what purpose is he proposed to be called. This provision of law makes room for a prior information of the witness to come prepared for making deposition in the court or producing documents. 8. Code of Civil Procedure has been revolutionised by bringing in drastic amendment in the procedure, One of the improvements made is in respect of seeking assistance of the court in summoning witnesses. This provision of law makes room for a prior information of the witness to come prepared for making deposition in the court or producing documents. 8. Code of Civil Procedure has been revolutionised by bringing in drastic amendment in the procedure, One of the improvements made is in respect of seeking assistance of the court in summoning witnesses. The earlier code left it for the parties to obtain summon after filing an application, provided the party making such application would within a period specified by the court pay the expenses for the witnesses. 9. In the amended Code, the addition of furnishing a list of witnesses within the stipulated time has deliberatedly been made. The party seeking to produce a witness is also required to specify the purpose for which the witness is proposed to be produced. Thus detailing out of a purpose is a necessary requirement and in absence of that the court will be within its limits to disallow summoning of that witness.” 8. In the case on hand, it is not the case of the respondent\first defendant that he has filed an application under Order 16 Rule 1(2) CPC and obtained permission from the trial Court for summoning the said two witnesses. Moreover, the trial Court has also nowhere stated that after satisfying with the purpose stated by the first defendant for summoning the said two witnesses, has permitted to take summons to the said witnesses. 9.Now let us come to the main provision of law under which, the above petition came to be filed and the impugned order came to be passed. Order 16 Rule 10 CPC. 10. 9.Now let us come to the main provision of law under which, the above petition came to be filed and the impugned order came to be passed. Order 16 Rule 10 CPC. 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 of (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 reason 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 document at a time and place to be named, therein and a copy or 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 any 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 : Provided that no court of small causes shall make an Order for the attachment of immovable property. 10. The very object of the above Rule is to enable the Court to compel the attendance of witnesses failing to appear without any excuse. 10. The very object of the above Rule is to enable the Court to compel the attendance of witnesses failing to appear without any excuse. A careful perusal of the above Rule would reveal that the Court before proceeding further must be satisfied with the service of summons on the concerned witnesses and a finding of satisfaction about the service of summons on the concerned witness is very much essential and the said satisfaction alone would cloth the Court with the jurisdiction to go into to the other aspects contemplated under Sub Rule 2 of Rule 10 CPC. 11. The Court has to record a finding whether such evidence or production is material and whether the witness has failed to attend or produce the document without lawful excuse. After giving findings to the above aspects\questions, the Court is at liberty to issue proclamation requiring the particular witness to attend, to give evidence or to produce the documents or that the Court, in lieu of the issuance of the proclamation or at the time of issuing proclamation or at any time afterwards, can issue a warrant with or without bail, for the arrest of such person and can also make an order for the attachment of his property to such amount not exceeding the amount of costs of attachment and of any fine which may imposed under Rule 12. 12. It is pertinent to mention that in Sub Rules 2 and 3, the word used is 'may', which would only indicate that the Court in its discretion can issue proclamation or warrant and the same is not mandatory. Considering the above, it is very much clear that the Court before passing any orders issuing of proclamation or warrant under Sub Rules 2 and 3 of Rule 10, it must be satisfied that the evidence of the witnesses or the production of any document is material and that the witness has failed to attend or to produce the documents without lawful excuse. 13. 13. A Division Bench of Allahabad High Court in B.Hirdey Narain vs. Emperor reported in AIR 1929 Allahabad 850, has observed, “Equally so, the Court can issue a proclamation under Clause (2), Rule 10 only on being satisfied that the evidence of the witness or the production of document which he is called upon to produce is material and that he has without lawful excuse, failed to attend or to produce the document.” 14. In Syed Shah Mohd. Hussaini v. Khutbuddin [AIR 1977 Kant 223], Karnataka High Court has held as follows: "Clause (2) of Rule 10 of Order XVI provides procedure to be followed by Courts when a witness fails to comply with the summons either to attend or to produce the document in compliance with such summons or has intentionally avoided service. On any such default, the court may issue a proclamation requiring the witness to give evidence or to produce the document. ..... But the Court cannot in a casual manner issue a proclamation or a warrant when the witness has failed to attend the Court must have reason to believe that the evidence of the witness or the production of any document is material to the case. It must, accordingly, record briefly its reasons." 15. Himachal Pradesh High Court in State of Himachal Pradesh Vs. Smt.Devki, reported in AIR 1992 HP 73 , has held as follows : “11. Coming now to the issue of show cause notice, under the impugned order, asking the two witnesses why fine, be not imposed upon them, suffice it to say that the power to direct notice to issue for a proposed action under Order XVI, Rule 12, C.P.C. can only be exercised when the court has first come to the conclusion that the evidence of the witness, who fails to appear before the court in spite of service of summons, was material and that he had failed to attend without lawful excuse. This intendment is clear from the use of the words "where 'such person' does not appear, or appears but fails to satisfy the court." This aspect of the matter is also not res integra. The Allahabad decision, aforesaid, takes a similar view. 12. This intendment is clear from the use of the words "where 'such person' does not appear, or appears but fails to satisfy the court." This aspect of the matter is also not res integra. The Allahabad decision, aforesaid, takes a similar view. 12. In sum, it must be held that the learned Senior Sub Judge, Bilaspur, acted without jurisdiction in directing issuance of bailable warrants for securing the presence of the two witnesses for the reasons mentioned by him in the order dated February 8, 1991, as well as in directing issue of notice for action under Rule 10 of Order XVI, C.P.C. The order deserves to be quashed.” 16. As rightly held by the Madhya Pradesh High Court in Dwarka Prasad Vs. Rajkunwar Bai reported in AIR 1976 MP 214 , the provisions contained in Order 16, Rule 10 of the Code are of penal nature and, therefore, strict compliance of the procedure laid down therein is essential. 17. In the present case, the first defendant in the affidavit filed in support of the petition under Order 16 Rule 10(3) of CPC, has nowhere whispered the purpose for which, the said witnesses are to be summoned and in what way their evidence is material to the defence or to decide the issues involved in the suit. 18. More importantly, the plaintiff has filed the counter statement raising serious objections for summoning the said two witnesses and whereunder, she has stated that since she has claimed right on the basis of the Will, it is for her to prove the Will in accordance with the provisions of the Indian Evidence Act, that she has already examined two attesting witnesses on her side and there is absolutely no need or necessity for the other side to examine the remaining two attesting witnesses, that since the first defendant has failed to elicit any answers in their favour, during cross examination of P.W.2 and P.W.3, he has attempted to summon the other two witnesses to depose falsely. 19. As rightly pointed out by the learned counsel for the revision petitioner/plaintiff, the defendants in their written statement have not taken any specific stand or defence with respect to the suit property and they have only denied the plaint averments. 19. As rightly pointed out by the learned counsel for the revision petitioner/plaintiff, the defendants in their written statement have not taken any specific stand or defence with respect to the suit property and they have only denied the plaint averments. The learned counsel would further contend that the defendants have not claimed any right or title over the suit property and that since the defendants, who are the neighbours, had encroached a portion of the suit property and constructed a Wall therein, the plaintiff was constrained to file the above suit claiming the reliefs of declaration, permanent injunction and for mandatory injunction to remove the encroachment. 20. As rightly contended by the learned counsel for the revision petitioner, if that be the rival contentions of both the parties, this Court is at lost to understand, the purpose for examining the remaining two attesting witnesses of the Will on the side of the defendants. As rightly contended by the plaintiff's side, the defendants, who have not claimed any right, title or interest over the suit property, has no locus standi to deny or challenge the Will alleged to have been executed by the plaintiff's mother-in-law. 21. It is pertinent to mention that though the trial Court in the impugned order has observed that summons were served on the said two witnesses and the said two witnesses had also received the batta, the Court has not specifically dealt with the way in which the summons were served and also not recorded its satisfaction about the service of summons as contemplated under Order 16 Rule 10(1) CPC. More importantly, the learned trial Judge has neither dealt with nor recorded any finding as to whether the evidence of the said witnesses summoned is material and is essential for deciding the issues involved in the suit or necessary for proving the stand of the party at whose instance, the witnesses are summoned. 22. Moreover, in the present case, the trial Court has not at all rendered any finding that the witnesses have, without lawful excuse, failed to attend the Court. Simply because the witnesses have not turned up, despite the receipt of summons, the trial Court, without following the mandatory requirements contemplated under Sub Rule 2 of Rule 10 of Order 16 CPC, has casually and mechanically ordered for arrest of the said witnesses. Simply because the witnesses have not turned up, despite the receipt of summons, the trial Court, without following the mandatory requirements contemplated under Sub Rule 2 of Rule 10 of Order 16 CPC, has casually and mechanically ordered for arrest of the said witnesses. Considering the above, this Court has no hesitation to hold that the impugned order is not good in law and the same is liable to be set aside. 23. In the result, the Civil Revision Petition is allowed and the impugned order dated 20.01.2021 passed in I.A.No.2 of 2020 in O.S.No.75 of 2016 on the file of the District Munsif Court, Palani is set aside and the petition in I.A.No.2 of 2020 in O.S.No.75 of 2016 shall stand dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.