- (1.) HEARD learned counsel for the petitioner.
(2.) INSTANT writ petition has been filed by the petitioner under Article 226 & 227 of the Constitution of India with the prayer to quash the order dated 26.07.10 passed by Additional District Judge No.2, Jodhpur in Civil Original Case No. 142/06 whereby, the trial court closed the opportunity to lead evidence to petitioner defendant. Learned counsel for the petitioner submits that in the suit filed for recovery of Rs. 1,29,000/- petitioner being defendant filed written statement. Thereafter issues were framed and during evidence of defendants, upon prayer of the defendants petitioner, Shyamadoot was summoned by the court and summons were given 'dasti' to the petitioner for service. The summons issued to Smt. Shyamadoot was duly served upon her receipt of summons were placed before the court on 26.07.10 but witnesses did not appear before the Court, therefore, petitioner made a prayer for issuing bailable warrant to the said witness to seek her presence before the Court. The trial court rejected the prayer of the petitioner for issuing bailable warrant and passed an order to close the evidence. Learned counsel for the petitioner submits that in view of Order 16 Rule 14 of CPC, in the event of non-appearance of witness, after service, the trial court was under an obligation to issue bailable warrant to secure presence of said witness but instead of proceeding further for the said purpose, trial court passed an order to close the evidence which is totally in contravention of law, therefore, the order impugned may be quashed. Per contra, learned counsel for the respondents submits that under Order 16 Rule 14 CPC, there is no provision to issue bailable warrant to secure the witness, therefore, trial court has rightly rejected the prayer of petitioner defendant to proceed further. Therefore, the petitioner cannot be permitted to quash the order passed by the trial court for closing opportunity to lead evidence. After hearing both the parties, I have perused the Order XVI Rule 10 & 14 CPC which reads as under :- "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, or (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 of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. (3) In view 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, and 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." 14. Court may of its own accord summon as witnesses strangers to suit.-- Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [193][to examine any person, including a party to the suit] and not called as witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document."
(3.) FROM bare reading of above provision, it is abundantly clear that the procedure laid down under Order 16 Rule 10 CPC is not mandatory in nature because there is discretion left with the Court in the facts and circumstances of particular case. Herein this case, upon prayer made by the petitioner, summons were issued to secure presence of witness because inspite of granting several opportunities to the petitioner defendant, the said witness was not produced by the petitioner defendants, then while exercising discretion, the Court proceeded under Order 16 Rule 10 CPC, therefore, it cannot be said that order impugned is illegal, more so the trial court granted reasonable opportunities to produce witness in the court. In view of above, I see no reason to interfere in the order impugned. Hence, the writ petition is dismissed. However, petitioner will be at liberty to make submission before the Court to draw presumption in his favour for evidence for which the said witness was summoned by the Court but he refused to attend the Court for recording statement. In the event of raising such ground, it is expected from the trial court to consider the same objectively.;