Quashed

Avtar Singh v. Balwant Singh Majitha and Ors.

Punjab & Haryana HC21 Jul 2010CR/2436/2010

Case brief

AI extract

What is this about?

This revision petition challenges an order closing plaintiff's evidence because a government doctor witness failed to appear. The High Court held the trial court erred in closings evidence without issuing proclamation, non-bailable warrants, or attachment orders as required by law. The impugned order was quashed.

What did the court decide?

Quashed the order dated 3.3.2010 closing evidence; directed the trial court to proceed ensuring the witness's presence.

Avtar Singh Vs Balwant Singh Majitha… — Civil Procedure and Limitation | Punjab & Haryana HC (2010)

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CR No. 2436 of 2010

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In the High Court of Punjab and Haryana, Chandigarh.

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CR No. 2436 of 2010 (O&M)

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Date of Decision: 21.07.2010

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Avtar Singh ....Petitioner Versus Balwant Singh Majitha

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....Respondent.

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Coram:- Hon'ble Mr. Justice Alok Singh

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1.Whether reporters of local news papers may be allowed to see judgement ?

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To be referred to reporters or not ?

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Whether the judgement should be reported in the Digest ?

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Present: Mr. Ashu Kaushik, Advocate

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for the petitioner.

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Mr. Bhupinder Singh, Advocate for the respondent.

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Alok Singh, J.(Oral)

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Challenge in this revision petition is to the order dated 3.3.2010 passed by the Civil Judge, Junior Division, Ropar, whereby evidence of the plaintiff is closed.

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In the present petition, a very important question of law involved is, as to whether, if government servant has failed to appear as a witness despite of issuance of summons and bailable warrants, right of the plaintiff to produce him, should be closed ?

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CR No. 2436 of 2010 2

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Brief facts of the present case are that plaintiff has filed suit for recovery of Rs.2 lacs along with interest at the rate of 18% p.a. as damages for harassment and injuries, reputation, mental and physical loss to the plaintiff against the defendant – police officer. In the suit, list of witnesses was submitted by the plaintiff citing therein Dr. Darshan Singh as one of the witnesses for the plaintiff. Dr. Darshan Singh, who is in government service and had examined the injuries of the plaintiff, was summoned by the Court on the request of the plaintiff. The Court below vide order dated 16.3.2009 has observed as under: -

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“PW Doctor Darshan Singh Sidhu has not turned up despite service. Be summoned through bailable warrants in the sum of Rs.5000/- with one surety in the like amount for 26.3.2009. Remaining PWs be also produced summoned for that date.”

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Thereafter, the Court below passed an order dated 5.5.2009, which reads as under: -

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“Summons of Doctor Darshan Singh received back duly served. Perusal of the order dated 16.3.2009 reveals that the said witness was ordered to be summoned through bailable warrants in the sum of Rs.5000/- with one surety in the like amount but the Ahlmad has issued ordinary summons for the service of this witness. Today the said witness has not turned up. Now the said witness be summoned afresh through bailable warrants for 2.6.2009 as per order dated 16.3.2009.” Thereafter, on 7.8.2009, the Court below has passed the following order: -

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“PW Doctor Darshan Singh has not appeared despite service.

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CR No. 2436 of 2010 3

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Be summoned afresh through bailable warrants in the sum of Rs.2,000/- with one surety in the like amount for 3.9.2009 through SHO. Remaining PWs be also produced/summoned for that date.”

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Dr. Darshan Singh despite of service of the summons and bailable warrants failed to appear before the Court. Consequently, the Court passed the impugned order dated 3.3.2010 closing evidence of the plaintiff on account of failure of Dr. Darshan Singh to appear in the Court despite of service of summons and bailable warrants.

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To decide the question involved, this Court thinks it proper to reproduce the provisions of Order 16 CPC. Order 16 Rule 8 CPC and Order 16 Rules 10 and 12 CPC read as under: -

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“ 8. Summons how served. - Every summons under this Order, not being a summons delivered to a party for service under rule 7A, shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this rule.

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10. Procedure whose witness fails to comply with summons.-

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(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-

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(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

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CR No. 2436 of 2010

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(b) May, if the certificate of the serving officer has been so verified,

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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 nonservice of the summons.

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(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.

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(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, 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 :

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Provided that no Court of Small Causes shall make an order for the attachment of immovable property.

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12. Procedure if witness fails to appear. -

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(1) The Court may, where such person does not appear, or

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CR No. 2436 of 2010

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appears but fails so to satisfy the Court, 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 the attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any:

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Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment. (2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.”

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Rules 8, 10 and 12 provide that summons to witness shall be served as a summon to a defendant. It further provides, if despite of service of summons, witness failed to appear as a witness then the Court may issue a proclamation requiring him to attend to give evidence at a time and place to be named therein and the Court may in its discretion issue warrants with or without bail for the arrest of such person and Court may further make an order for the attachment of his property to such amount as it thinks fit. The Court may also issue attachment order of the property of the witness who fails to comply with the summons and warrants.

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In the present matter, the trial Court after issuing bailable

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CR No. 2436 of 2010

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warrants, neither issued non-bailable warrants nor issued a proclamation nor issued any attachment order. The trial Court should have issued first nonbailable warrants after service of bailable warrants and thereafter, should have issued attachment order of property of Dr. Darshan Singh, including his pay. However, instead of exercising jurisdiction as mentioned hereinabove, the trial Court illegally closed evidence of the plaintiff for no fault of him.

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In view of the above, impugned order dated 3.3.2010 (Annexure P-5) is quashed. The trial Court is directed to proceed in accordance with law to ensure the presence of Dr. Darshan Singh as a witness.

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Petition stands disposed of in the above terms.

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( Alok Singh ) Judge

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21.07.2010 sk.

Avtar Singh v. Balwant Singh Majitha and Ors.

Case brief

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Avtar Singh v. Balwant Singh Majitha and Ors.

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