SYED SHAH MOHD HUSSAINI Vs. SHAIKH KHUTBUDDIN

JUDGEMENT

(1.) This revision raises a short but an important question which relates to the power of the Court to issue a warrant of arrest to secure the presence of a witness.

(2.) All that I need state the facts are these: Respondents 1 to 3 filed a suit claiming certain rights as "Fakeers" over the Durgas at Gulbarga. The petitioners who are defendants 2 and 3 therein, claim to be Sajjadanashin of different religious institutions at variousr places. The plaintiffs have taken a very bold stand. They have summoned the defendants as their witnesses. Indeed, it is a very unusual practice and has been condemned by Courts as wholly undesirable. (See Makunt Shatrugan Das v. Bawa Sham Das, AIR. 1938 PC. 59. The implications of their action is that they have to accept their opponents as witnesses of truth. The summonses issued to the petitioners were served, but they were not present when the suit was taken up for evidence. One of the petitioners had sent an application for adjournment stating that he was suffering from stomach ache. The learned Munsiff rejected that application on the ground that it was not supported by any material. The learned Munsiff thereafter, at the request of the Counsel for the plaintiffs, issued non-bailable warrants against the petitioners. The validity of these warrants has been called into question in this petition.

(3.) The learned Munsiff has not given any reason in his order. Perhaps he thought that mere absence of the defendants would be sufficient to issue the non-bailable warrants. If that be the impression, I must state that it is wholly wrong and unsustainable in law. Clause (2) of Rule 10 of Order XVI provides procedure to be followed bv Courts when a witness fails to comply with the summons either to attend or to produce the document in compliance with such summons or has intentionally avoided service. On any such default, the Court may issue a proclamation reouiring the witness to give evidence or to produce the document. Clause(3) provides that 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 also may make on odre for attachment of his property. But the Court cannot in a casual manner issue a proclamation or a warrant when the witness has failed to attend the Court. Before taking any such Step, the Court must have reason to believe that the evidence of the witness or the production of any document is material to the case. It must, accordingly, record briefly its reasons.