Rule 9 of Order 16 provides that summonses must be served on the witnesses in sufficient time, which Rule is in favour of the witnesses. It enjoins due diligence on the party, but it does not empower the court to refuse the issue of summons to a witness on the ground of late application. Summons cannot be refused on the ground that the party had refused to bring his witnesses himself or to carry out an illegal order of the Court for ‘Dasti’ service on the witnesses. Only if the Court finds that the issue of the summons would amount to an abuse of the process of the Court, has it the inherent power to refuse to summon witnesses. [Para 6]

Advocates who appeared in this case :
Mr. Adarsh Sharma, Advocate for Appellants
Mr. H.C. Jhalmeria, Advocate for Respondents

"Promptitude and despatch in the dispensation of Justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but hand-maids of justice. They cannot be construed in a manner which would hammer justice. As a general rule evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence, if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness. As observed by the Calcutta High Court in Rupendra Deb Raikut’s case AIR 1951 Cal 286, however, negligent or careless may have been the first omission and however, late the proposed evidence, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs."

The above observations made by Justice R.S.Sarkaria in case reported as Balwant Singh Bhagwan Singh & Others v. Firm Raj Singh Baldev Kishan, AIR 1969 P&H 197, apply to the facts of this case. The facts be noticed in brief.

Even though the petitioner had deposited the diet money at an initial stage, yet two witnesses, namely, Mast Ram and Sub Judge, who registered the Will were not permitted to appear in the witness box. It is this order which is subject matter of challenge in this petition.

Respondents No.1 & 2 filed a Civil Suit seeking a declaration that the Will dated 21-071992 executed by one Mst Sito Wd/o Kharku bequeathing her properties in favour of the petitioners is not enforceable, it being obtained by fradulent means. It was also pleaded that un-due influence was exercised. With a view to establish the frivolousness of the will the present petitioners had indicated at the initial stage i.e. on 08-05-1995 that he would like to summon five witnesses, two of these are Mast Ram and Sub-Judge, who registered the will. The further fact is that the petitioners led the evidence. Their right to lead evidence was closed with a stipulation that he can lead the rest of the evidence in rebuttal. An order to this effect was passed on 31-07-2000. There-after when he was leading evidence he wanted afore-mentioned two witnesses to be summoned. This prayer was allowed with a stipulation that the petitioner can lead his evidence at his own risk and responsibility. An order to this effect was passed on 07-08-2000. Later on on 30-08-2000, the court passed the impugned order closing the right of the petitioners to lead further evidence. It is this order which is subject matter of challenge in this petition. It is submitted that the petitioners had deposited the diet expenses and therefore, the court’s assistance could not be denied to the petitioners. They submit that in the facts and circumstances the order passed by the court below cannot be sustained.

There is no dispute with the legal proposition and there is nothing in the Civil Procedure Code which expressly inhibits the service of summonses by the mode, known as ‘Dasti’ process. It is also true that the language of Rule 8 of Order 16 is very flexible and the words ‘as nearly as may be’ there-under are wide enough to permit the issue of Dasti process for witnesses also.

Again Rule 9 of Order 16 provides that summonses must be served on the witnesses in sufficient time, which Rule is in favour of the witnesses. It enjoins due diligence on the party, but it does not empower the court to refuse the issue of summons to a witness on the ground of late application. Summons cannot be refused on the ground that the party had refused to bring his witnesses himself or to carry out an illegal order of the Court for ‘Dasti’ service on the witnesses. Only if the Court finds that the issue of the summons would amount to an abuse of the process of the court, has it the inherent power to refuse to summon witnesses.

In view of the position of law noticed above and on the peculiar facts and circumstances of the case, the order passed by the trial court declining the court assistance and closing the evidence of the petitioner is held to be bad in law. This petition is allowed with the following observations ;

i) that so far as witness Mast Ram is concerned process would be issued. This would be done on 24-11-2000 on which date the parties would appear before the trial court ;

ii) so far as Sub Judge (Sh.Duni Chand Sagotra), who registered the Will is concerned at the first instance he would be examined on commission. Copy of this order would be sent to District Judge, Rajouri under whose territorial jurisdiction Sh.Duni Chand Sagotra, is posted as sub Judge, Nowshera. The learned District Judge would examine the said Sub Judge on Commission. The petitioners would deposit a sum of Rs.1000/- as fee for meeting the expenses and payable to the respondents which may be incurred in examining the sub Judge in the manner indicated above.

iii) If the parties are agreeable, then the interrogatories be also sent to the said sub Judge. This is a matter on which option can be exercised by the parties and if both of them are agreeable then this process would be adopted ;

The Sub-Judge ( Sh.Duni Chand Sagotra ) otherwise would be examined on commission and he would be so examined on 09-12-2000.