SURINDER MOHAN KATWAL Vs. KAUL SINGH THAKUR

JUDGEMENT

(1.) THIS petition is directed against the order dated 23.1.2013 passed by the learned Civil Judge (Senior Division), Una in C.S.R.B.T. No. 42/09/05 whereby an application under order 16 rule 10 of the Code of Civil Procedure filed by the petitioner has been dismissed. "Key facts" necessary for the adjudication of this petition are that Sh. Vijay Kumar Chopra was directed to be summoned as a witness vide order dated 4.9.2009. The case was fixed for 17.11.2009. The Presiding Officer was on leave on 17.11.2009. The case was listed for 26.2.2010. The summons issued to Vijay Kumar Chopra were received back on 21.4.2010. The case was ordered to be listed for 24.6.2010. The Presiding Officer was on leave on 24.6.2010. The Presiding Officer was again on leave on 28.9.2010. Thereafter, the case was fixed for 26.11.2010 on which fresh summons were ordered to be issued for 14.2.2011. The Presiding Officer was on tour on 14.2.2011. On 16.6.2011, two witnesses were examined. The evidence of the petitioner -plaintiff was closed. He approached this Court by way of CMPMO No. 484/2011. It was decided by this Court on 30.7.2012. The last opportunity was given to the petitioner to produce his evidence. Dasti service was also permitted. The presence of Vijay Kumar Chopra was also ordered through the process of Court. The parties were directed to appear before the trial court on 10.9.2012. The case was taken up by the learned Civil Judge (Senior Division) on 30.10.2012. According to this order, PW Vijay Kumar Chopra was already served through ordinary process as well as through alternative process, i.e. Fax, E -mail, speed post etc. and despite that he was not present. Bailable warrants in the sum of Rs. 2,000/ - alongwith notice under order 16 rule 12 of the Code of Civil Procedure returnable for 30.11.2012 were issued for procuring the presence of Vijay Kumar Chopra. The service was to be effected through special messenger. The matter was listed on 30.11.2012. Vijay Kumar Chopra did not appear. The trial court came to the conclusion that Vijay Kumar Chopra cannot be served in an ordinary process. Warrant of arrest was issued for procuring the presence of Vijay Kumar Chopra by an officer not below the rank of A.S.I. The service was to be effected through special messenger. A letter was ordered to be written to the Superintendent of Police, Una for procuring the presence of Vijay Kumar Chopra on 23.1.2013. It has also come in the order dated 30.11.2012 that the learned counsel for the petitioner -plaintiff apprised the court that in case the petitioner -plaintiff failed to produce his witnesses in the court, the evidence of the plaintiff shall be closed by the order of the Court.

(2.) THE petitioner moved an application under order 16 rule 10 of the Code of Civil Procedure for procuring the presence of PW Vijay Kumar Chopra through issuance of attachment of moveable property and issuance of proclamation. Thereafter, the matter came up before the learned trial court on 23.1.2013. The application preferred by the petitioner under order 16 rule 10 of the Code of Civil Procedure was dismissed and the evidence was closed. The defendant's witnesses were ordered to be summoned by filing P.F., D.M. etc. within a week for 8.3.2013. The present petition has been filed against the order dated 23.1.2013.

(3.) MR . Anup Rattan has supported the impugned order passed by the trial court.