Prasenjit Mandal, J. - (1.) CHALLENGE is to the order no.100 dated September 22, 2004 passed by the learned Civil Judge (Junior Division), Fifth Court, Howrah in Title Suit No.115 of 1995 thereby rejecting an application of the plaintiffs under Order 16 Rule 10 of the Code of Civil Procedure.
(2.) THE plaintiffs/petitioners herein instituted a Title Suit being T.S. No.115 of 1995 for declaration and permanent injunction against the opposite parties. THE plaintiffs sought for declaration that the defendant no.1 is not the legally married wife and legal heir of late Lab Kumar Paul, full brother of the plaintiffs and that she has no right, title and interest in the suit plot, as described in the schedule of the plaint or any estate left by late Lab Kumar Paul. That suit is at the stage of peremptory hearing and the defendants/opposite parties herein are contesting the said suit. THE plaintiffs filed an application under Order 16 Rule 10 of the C.P.C. praying for summoning one Niranjan Patra as witness and that summons was refused by the said Niranjan Patra. THE contention of the defendants/opposite parties herein is that the said witness is not at all a material witness and that he is not a mentally fit person to adduce evidence. Upon consideration of the materials on record, the learned Trial Judge rejected the said application. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be supported. Upon hearing the learned counsel for the petitioners and on perusal of the materials on record, I find that the summons was issued upon the said witness, namely, Niranjan Patra and he refused to take the said notice sent by registered post. The learned Trial Judge has observed that since the service return upon the said witness was then yet to be received, at the time of passing orders, the learned Trial Judge was not prepared to pass orders on attachment or warrant of arrest at that time. The ground assigned by the learned Trial Judge, I think, is convincing and unless and until it is proved by evidence or materials on record that the said witness refused to accept the summons or that knowing fully well of the matter in dispute on getting the summons, he refused to depose, the prayer of the plaintiffs should not be entertained. So far as the contention of the defendants/opposite parties herein that the said witness is not a material witness and that he is not a person of sound mind, has no basis at all as per materials on record. Therefore, the learned Trial Judge has not considered that contention on behalf of the opposite parties. I think the order is justified in the given circumstances and in fact, the learned Trial Judge did not pass any orders with observations that the steps taken by the petitioners were premature. I think that this being the position, there is no scope of interference with the impugned order. This application has no merits at all. Accordingly, this application is liable to be dismissed. Therefore, this application is dismissed. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.;