TILAK RAJ Vs. PHUL CHAND

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India, prayer made by the petitioner is for quashing order dated 9.4.2001 passed by the Civil Judge (Junior Division), Ferozepur, whereby bailable warrants have been ordered to be issued against him.

(2.) In brief, the facts are that Phul Chand son of Ramji Lal filed suit for permanent injunction against Om Parkash Jaiswal for restraining him from carrying out any construction in ahata No. 241 situated in Bazar No. 4, Ferozepur Cantt. owned by Bhola Nath Trust (Regd.), Ferozepur Cantt. After framing of the issues, case was adjourned to 10.1.2001 for evidence of the plaintiff. No witness was present on the said date and the case was adjourned to 31.1.2001. On 31.1.2001, one witness was present but since counsel for plaintiff was out of station, an adjournment was requested and the case was adjourned to 7.2.2001. On the adjourned date, examination-in-chief of one witness was partly recorded as counsel for the plaintiff wanted to exhibit Zimni order dated 10.1.2001 only indicates that defendants to the suit were directed to produce the documents on the next date. It is the admitted case of the parties that the only defendant in the case is Om Parkash and petitioner, Tilak Raj is not a defendant. On the next date of hearing, i.e. 2.3.2001, no PW was present and an adjournment was requested and the case was adjourned to 3.4.2001. On 3.4.2001 Phul Chand, plaintiff, did not come present. The Civil Judge (Junior Division), in his order dated 3.4.2001 recorded as under: "Present: Counsel for the parties.

(3.) Learned counsel appearing on behalf of respondents 1 and 2 has submitted that on 10.2.2001 when the statement of Phul Chand, plaintiff No. 1, was being recorded, Tilak Raj who is one of the trustees of the Bhola Nath Trust (Regd.) was present in Court and on the said date, the Court had directed him to produce the documents as it felt that the same are in his custody. On a reading of statement of Phul Chand recorded on 10.2.2001, I find that the examination-in-chief of Phul Chand was deferred and defendant Om Parkash and Tilak Raj, petitioner who were present in Court were directed to produce the original documents in Court. Since Tilak Raj was not a defendant nor had been summoned as a witness by the plaintiff, no direction could have been issued to him to produce the documents. On 19.4.2001 petitioner filed an application before the Civil Judge (Junior Division) stating that he had been served for appearing in Court on 19.4.2001 by way of bailable warrants. He further stated that he is not a party to the suit nor any diet money etc. was ever deposited by any party to the suit to summon him. He also requested the Court that he may be made aware of the circumstances under which he was summoned as a witness. He stated that he is an old man of 69 years and a patient of hypertension and the very issuance of bailable warrants has subjected him to un- warranted agony. Counsel for respondents I and 2 has not been able to point out that any order on this application has since been passed. Order XVI Rule 7, Code of Civil Procedure, gives power to the Court to require presence of any person for producing document but "any person" in this rule means who is a party to the suit or who has been cited as a witness to give evidence or produce document. Petitioner in this case did not fall in any of the said categories and therefore, issuance of bailable warrants qua him was totally unwarranted.