(1.) THE only question involved in the case is whether a party can be directed to take dasti summons for the service of the witnesses, whose
expenses and process fee stands deposited, but summons were not issued.
(2.) THE contention of Mr.Sharma appealing for the petitioners is that expenses and process fee for summoning four witnesses were deposited
in the court on 16.03.1998. However, summons could not be issued, as the
application had been misplaced by the dealing assistant. As the witness
expenses and process fee stood already deposited, he gave the particulars
of those witnesses, who were to be summoned as per the original list. But
instead of issuing summons to procure their attendance, the District
Judge, Jammu by order dated: 10.09.98 directed the petitioners to take
dasti summons. The order according to Mr. K.L. Sharma, is bad because
unless some difficulty was experienced by the court in effecting service,
such a course could not be adopted.
(3.) MRS . Radha Sharma appearing for the non -petitioner, however argued that the delay in summoning the witnesses was entirely due to the
plaintiff and it was only to avoid further delay that the order impugned
came to be passed. Order XVI of the Code of Civil Procedure provides for
summoning of witnesses. In Manga Ram vs. Brij Mohan and ors. AIR 1983 SC
925, the Supreme Court considered its scope and held as follows: -
Sub -rule (1) of Rule 1 of Order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. Sub -rule (2) requires that the parties seeking the assistance of the court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is proposed to be summoned. Sub -rule (3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted in Sub -rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub -rule (3) of Rule 1 of Order XVI. If a reference to Rule 22 of the High Court rules is recalled at this stage, if merely re -enacts sub -rule (1) and sub -rule (2) of Rule 1 of Order XVI. 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 list of evidence of each witness whose name is entered in the list has to be earned 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. The consequences 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 summons, the court on being satisfied of the service as provided therein and is further satisfied that the person has without lawful excuse tailed to honour the summons, the court 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 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, 1 -A 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 the proceedings 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 -section (1) of Section 87 of the 1951 Act which enables the court to 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 the witnesses in the list but also the gist of evidence of such witness. If mere omission to mention the name of a witness is the list envisaged by sub -rule 1 of Rule 1 of Order XVI would enable the court to decline to examine such witness, Rule 1 -A 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 1 -A becomes wholly redundant. If it is obligatory upon the party to mention the names of all witnesses irrespective of the fact that the 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 1 -A would have given a clear legislative ex -position in that behalf and the marginal note of Rule 1 -A clearly nagatives this suggestion. Marginal note of Rule 1 -A 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 implict in Rule 1 -A that it only enables the party to examine only those witnesses whose name 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 1 -A that the party may bring any witness to give evidence or to produce documents without applying for summons under Rule 1. Rule 1 -A 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 -A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not. It was, however, contended that Rule 1 -A is subject to sub -rule (3) of Rule 1 and therefore, the court must ascertain how for sub -rule (3) would carve out an exception to the enabling provision contained in Rule 1 -A. There is no inner contradiction between sub -rule 1 of Rule 1 and Rule 1 -A of Order XVI. Sub -rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the court to cater to a situation where the party has failed to name the witness in the list and yet the party is enable to produce him or her on his own under Rule 1 -A and in such a situation the party of necessity has to seek the assistance of the court under sub -rule (3) to procure the presence of the witness and the court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Rub -rule 1 of Rule 1, the court may still extend its assistance for procuring the presence of such or otherwise which ordinarily the court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub -rule 3 of Rule 1 and Rule 1 -A operate in two different areas and cater two different situations."
The ratio is that where a party has furnished the list, deposited the expenses and process fee in terms of Rule 1, the court has
the obligation to summon the witnesses and take steps to ensure their
presence in case of disobedience. This obligation has not been
dis -charged in this case before calling upon the petitioners to serve
them by taking dasti summons. The order impugned is thus contrary to the
law. The petition as such is allowed and the order impugned is set aside.
Parties through their counsel to appear in the trial court on 30.09.1999.;