S.K.Mookherjee, J. - (1.) This Revisional Application is directed against Order No.202 dated 10th of April, 1992 passed by the learned Chief Judge, City Civil Court at Calcutta in Title Suit No.1403 of 1977. On the basis of an application made on behalf of the defendant, which is the petitioner before us, the learned Trial Judge upon a finding, inter alia, that in view of an order of this Court it was not possible for the Court to debar the defendant from making available the relevant materials for coming to a finding on the relevant point for disposal of the relevant two issues in the suit, allowed the defendant's application for issuance of summons on two witnesses at the risk of procurement of the attendance of the witnesses by the defendant. One of the witnesses appeared and deposed. Another witness did not appear and the Court directed issue of fresh summons by a subsequent order. Such summons had been sent out and in addition, the defendant claims to have sent a telex message to the said witness for his appearance in Court as directed. On the date fixed there was again no appearance of the witness and the defendant made an application under Order 16, Rule 10 of the Code of Civil Procedure, praying for issuance of proclamation against the witness concerned, inter alia, pleading the aforesaid materials or facts for consideration by the Court. The Court by the impugned order rejected the said application of the defendant, inter alia, with a finding, accepting the oral submission on behalf of the plaintiff by its learned advocate, that the appearance of the witness was being deliberately delayed by the defendant to serve its purpose. No other reason has been recorded by the learned Trial Judge.
(2.) We have heard Mr. Mitra on behalf of the defendant/petitioner, the support of the Revisional application and Mr. Dasgupta on behalf of the plaintiff/opposite party. The provision of Order 16, Rule 10 are of highly penal nature and as such, the statutory requirements of the said order must be strictly fulfilled before the Court can issue any order thereunder or take any action in terms thereof. The liability of a witness to an action by Court in terms of the said order accrues only when there has been satisfactory service of summons on the concerned witness and as such, a finding of the Court embodying it satisfaction about the service of summons on the witness is an essential prerequisite for any action in terms of the said order. Presence or absence of averment from the side of the applicant about service for invoking the said provision has no relevance as the Court is under a duty to arrive at its own satisfaction before initiating the penal action in terms of the said order. A finding about satisfactory service of summons or deliberate avoidance of service thereof clothes the Court with jurisdiction to go into other questions, namely, whether such evidence or production is material and whether the witness without lawful excuse has failed to attend or produce the document. In the instant case there is no such finding about satisfactory service of summons on the concerned witness or its deliberate avoidance by the said witness. Moreover, the finding of the Court to the effect that the relevant petition of the defendant/petitioner is a device to delay the hearing and disposal of the suit to serve their purpose does not appear to be based on any reason and as such, cannot be sustained.
(3.) We, accordingly set aside the impugned order and direct the learned Trial Judge to reconsider the application made on behalf of the defendant under Order 16, Rule 10 of the Code of Civil Procedure, according to law and on the lines of our observations above. We make it clear that we have not expressed any view on any of the contentions raised by the parties on merit and all such contentions remain opened for being considered by the learned Trial Judge.;