RAMCHANDRA CHANDE Vs. VENKATESH

JUDGEMENT

(1.) 1. This is an application for revision of the order of Mr. Moghe, Sub-Judge, First Class, Bhandara, refusing to allow the applicant to re-summon his witnesses. The applicant was one of the plaintiffs in a civil suit. Preliminary issues were framed on 10th February 1932 and the case was fixed for evidence on 19th March. On that date the defendant non-applicant examined one witness and closed his case. The plaintiff-applicant examined three witnesses, but three of his witnesses were absent, the summonses not being returned as the process-fee was paid late. The plaintiff however requested an adjournment to obtain the presence of his witnesses and he was given one adjournment to re-summon them at his risk and the case was fixed for 20th April 1932. On 20th, April the witnesses were absent, but it appears that there had been a mistake of the process-writer who, in issuing the process for these witnesses, had given the date as the 11th and not the 20th April. Two out of the three witnesses were served, but obviously when they were served for the wrong date they could not be present on the 20th. The Sub-Judge however has held that the plaintiff should have produced the witnesses in Court, as they all live at Bhandara, where plaintiff himself res-sides and where the Court was sitting. He refused apparently to allow the plaintiff to re-summon the witnesses, but gave him a chance to produce them without summonses on the 25th April saying that if they were not produced the case would be closed. On the 25th the plaintiff failed to produce any of the witnesses and asked for summonses. This application was rejected and the case was closed, a finding on the preliminary issues being given on the 28th.

(2.) IT seems to me that the Sub-Judge has acted arbitrarily in the matter, and in any case when the non-attendance of the witnesses was caused by the mistake of one of the Court clerks, namely, the process-writer, the plaintiff should have been given an adjournment and should have been allowed to re-summon his witnesses. Further, I would point out that a party is entitled as a right to resummon his witnesses and there is no justification for the Court refusing to issue sommons if the process-fees are paid. A Court can no doubt refuse to grant an adjournment for good reasons, but if an adjournment be given the Court cannot refuse to summon witnesses for the adjourned hearing. Further there is no authority in the Code for the order, which is not infrequently made by lower Courts, that witnesses be summoned at a party's risk. If witnesses are absent, it is the duty of the presiding Judge to ascertain whether they have been duly served or not. If they have been served and the party calling them says that their evidence is material, a warrant of arrest should, as a rule, issue to compel their attendance. If they are not served, a fresh summons should issue if the party wishes to call them. In any case a Court cannot refuse to issue process for the attendance of witnesses, if an adjournment is granted, unless the Judge is satisfied that the application for the summons is not made bona fide or is an abuse of the power of the Court to summon witnesses.