MANORMA SHARMA Vs. SAHIB SARAN KHAJURIA AND OTHERS

JUDGEMENT

(1.) In the instant writ petition, the petitioner seeks quashing of order dated 25th October, 2017 passed by the Principal District Judge, Jammu, whereby petitioner has been directed to file affidavits of his witnesses.

(2.) The facts in nutshell are that the Suit for partition by meets and bounds, in which the petitioner is one of the defendants, is pending trial in the Court of Principal District Judge, Jammu. The petitioner has already submitted a list of witnesses, which is on the record of the suit file. There is a prayer on behalf of the petitioner for summoning the witnesses in accordance with law and she is not in a position to bring them to the Court for their evidence on her own nor can secure affidavits from them. They will appear only if summons from the Court are served on them. The Principal District Judge, Jammu, however, taking cognizance of the fact of filing of the list of witnesses by the petitioner, obliviously in accordance with law, but without following the course of law to summon them, has directed her to file their affidavits. The petitioner has brought it to the notice of the Court that the witnesses have to be first summoned as the petitioner cannot produce them on her own or secure their affidavits, and then ask if they want to give evidence on affidavit. In such circumstances, the petitioner cannot be compelled to produce the witness on her own or be required to file their affidavits.

(3.) The aforesaid impugned order has been challenged by the petitioner on the grounds that the normal course for enforcement of appearance of the witnesses is through summons by the Court, unless, of course, the party citing witnesses can produce them on their own. The entire scheme of Order XVI rests on the aforesaid statutory principle. Under Order XVIII Rule 4 of the Code of Civil Procedure, examination-in-chief of the witnesses can be allowed on affidavits, but it does not require a party, citing witnesses for evidence on his/her behalf to produce them on his own or file their affidavits. In no event, the party can be compelled to produce such a witness or secure his affidavit.