RAVI BALA GARG Vs. TABASSUM

JUDGEMENT

(1.) Present writ petition has been filed under Article 226/227 of the Constitution of India, requesting therein that the concerned Court wherein suit is pending be directed to examine Sri A.K. Srivastava, Advocate either through the Commission at the cost of the petitioners or to summon him through the process of Court itself and not be dasti summons to give evidence. Further request has been made to quash the order dated 24.3.2012 and 3.4.2012 passed in original suit No. 274 of 2004. From record, it is reflected that Original Suit No. 274 of 2004 had been filed for declaration that freehold-deed dated 29.3.2004 and the consequential action based on the same be declared as null and void alongwith various other reliefs. Petitioners claim that they are the defendants in the said suit; they have filed written statement and additional written statement. Petitioners have contended that despite decree dated 28.2.1979 passed in Original Suit No. 231 of 1978 and the injunction order dated 19.7.2003 passed in Original Suit No. 388 of 2003, freehold-deed has been obtained on 29.3.2004 and in this background, it has been stated that M.C. Gupta had colluded with the defendants of Original Suit No. 223 of 1978 and Sri A.K. Srivastava, Advocate, who had been appearing, was the best person to substantiate such facts as such steps be undertaken for summoning A.K. Srivastava. The Trial Court seized of the matter proceeded to pass an order for summoning of Sri A.K. Srivastava by way of dasti summons. Sri A.K. Srivastava appears to have been reluctant in appearing pursuant to dasti summons and accordingly affidavit of service had been filed and request was made to summon him through the process of Court or examine him through Commission. Said request has been turned down. At this juncture, present writ petition has been filed. Sri Ajit Kumar, learned Counsel for the petitioners, contended that once in the past dasti summons had been issued for summoning A.K. Srivastava as witness and A.K. Srivastava had refused to appear pursuant to the same, then it was duty of the Court to have ensured his presence either through the Commission or through the process of the Court, and consequently, the Trial Court has failed to exercise the authority vested in him, as such the order passed is bad.

(2.) Countering the said submissions Sri Ashish Kumar Singh, Advocate, contended that sole endeavor of the petitioners is to delay the proceedings by all means, whereas there is precise order passed by this Court to conclude the proceedings at the earliest and submits that in this background no interference be made.

(3.) After respective arguments have been advanced, factual situation which so arises in the present case, is that the plaintiff-petitioners have been requesting for summoning of Sri A.K. Srivastava as one of the witnesses. Trial Court accepted the said prayer and proceeded to pass order for ensuring his presence through dasti summons. Thereafter, an application 308-C dated 30.3.2012 had been moved requesting therein that attempt was made to serve Sri A.K. Srivastava, Advocate, but he refused to accept the summons and further mention was made that Sri A.K. Srivastava had no objection to be examined through Commission. Application to the same effect had also been moved in the past on 24.3.2012. Said application had been disposed of with direction to issue dasti summons for ensuring presence of A.K. Srivastava.