1. The facts leading to Civil Revisions 697 and 698 of 1968 are common and may be set out as under;
Firm 'Raj' Singh Baldev Kishan' instituted a suit for permanent injunction restraining the defendants, Balwant Sinmgh and Surjit Kaur , from interfering with the plaintiff's possession of a house. Written statement was filed by the defendants on 31-10-1967. The case was then fixed for the plaintiff's evidence on 14-12-1967. On that date, the plaintiff examined 5 witnesses. One witness, who did not appear on that day , was examined on a subsequent date, namely, 15-2-1968. The plaintiff concluded his evidence on that day. The case was then fixed for 5-4-1968, on which date the defendants furnished a list of their witnesses. The defendants named Dassundhi Ram. Pritam Singh . Darshan Singh, and Karnail Singh as their witnesses. They also made an application for summoning the records of another case., Dasaundhi Ram actually appeared in response to the summons on 6-5-1968. He could not be examined on that date because the presiding officer of the Court was on leave. He was bound down to appear on 17-5-1968. The other witnesses could not be served. The Court , therefore, ordered that bilabial warrants of arrest be issued against Dasaundhi Ram, and the others three be summoned . The case was adjourned to 30-5- 1968 for the evidence of these witnesses.
The defendant (Balwant Singh) did not deposit the process-fee within the time fixed by the Court as he was serving in the Army at Chandigarh. He sent the money by money-order to his counsel, only after the expiry of the period fixed by the Court. The Court had also directed that the process should be issued in duplicate, one should be sent for service through the process-serving Agency of the Court, and a duplicate process be issued to the defendant or his agent for serving on his witnesses, personally. On the date fixed, i.e., 30-5- 1968. The Court made the following order ,which is being impugned in Civil Revision 697 of 1968:
'Dasondhi Ram, DW. Not summone for lack of P. F. was deposited late, The defendant was directed on the last date to get duplicate summons Dasti and get service effected but he failed to do so. In the circumstances , the three D. Ws. would be deemed given up. Copy of the order to be proved from the file proposed to be summoned from the Record Room not filed. It is stated that the same would be issued in the next few days. Therefore to come up on 14-6- 1968. No other date will be given.'
2. Thereafter, the defendant filed a copy of the order from th records of th case which were sought to be summoned. However, he failed to take the process Dasti, i.e., by hand. Thereupon the trial Court passed the order, dated 16-7-1968. That impugned order reads as follows:
'No evidence of the defendant is present, He has applied for summoning a file from the Record Room and it was ordered that he would take requisition slip Dasti. However, the defendant did not take the slip Dasti. As ones (?) it would be presumed that he was not interested in summoning the file. Certain documents tendered . A date for examining the defendants is requested. To come up for defendant's statement and plaintiff's rebuttal on 30-7-1968'.
3. Firstly, it is contended by the counsel for the petitioner that the defendant was serving in the Army and was posted at a station away from Nabha, Consequently , he could neither deposit the process-fee within the unreasonably short period of 3 days, fixed by; the trail Court, nor could he take out Dasti Process either service upon the witnesses or for summoning the file of another case from the Record Room. In the peculiar circumstances of the case, therefore, it was unfair on the part of the Court to shut out the defendant's evidence on account of his default , It is suggested that the trail Court ought to have given another opportunity to the defendant to summon the witnesses and there cord through the Court. It is added that the opposite party could be amply compensated with costs,. In support of his contention, the learned counsel has referred to Ruupendra Deb v. Ashrumati Debi, AIR 1951 Cal 286 Ralla Ram v. Mt. Rasj, AIR 1922 Lah 63d, Pandu v. Rajeshwar AIR 1924 Nag 271, Bachan Suibngh v. Smt Sarli, 1965 Pun LR (S. N. ) 118; and civil Revn. 449 f 1968 (Punj) , Mohinder Kaur v. Gurudev Singh.
4. Secondly it is contended that the issue of Dasti process is a mode of service not recognised by anything contained in Order 16 or any other provision of code of civil Procedure . In support of this contention he has cited Roshan Singh v. Chiranjilal, AIR 1953 Madh B 48.
5. It may be noted that the procedure for summoning and attendance of witnesses is laid down in Order 16 Civil Procedure Code. Rule 1 of that order says:
'At any time after the suit is instituted , the parties may obtain , on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.'
6. A proviso has been added to this rule by the Punjab High Court , That proviso is not material for the decision of the case before me.
Suffice it to say that the language of Rule 1 shows that the duty for obtaining process or summonses for enforcing attendance of witnesses has been cast by this Rule on the party concerned. This Rul;e, however, does not say how those summonses, which are to be obtained by a party, are to be served. Rule 1-A however, indicates that a party who wants to examine witnesses may not apply for any summonses under Rule 1. He may himself bring the witnesses whose names appear in the list, to give evidence or to produce documents. Some High Courts, for instance, Bombay and Gujarat, have added Rule 1-B, which says that the Court may, on the application of any party for a summons for the attendance any person. Permit that service of such summons shall be effected by such party. But no such amendment has been made by the Punjab High Court. The material Rule. however, which indicates how the summonses are to be served, is Rule 8. It reads:
'Every summons under this Order shall be served as nearly as may be in the same manner as a summons to a defendant , and the rules in Order V as to proof of service shall apply in case of all summonses served under this rule'.
7. The Allahabad, Andhra Pradesh, Assam, Calcutta, Kerala, Madras, Orissa, Patna and Rajasthan High Courts have inserted express provisions either by way of amending Rule 8, or adding a new Rule in this Order, which enables a Court to deliver the summonses to a party applying for such summonses for making service on the witnesses. The Punjab High Court has not inserted a similar provision either in Order 16 or anywhere else in the Code f Civil Procedure, expressly authorising the delivery of summonses fr witnesses to the party applying for them for effecting service on his witnesses. But it can be said with equal force that there is nothing in the Civil Procedure Code which expressly inhibits th service of summonses byt his mode, which has come to be known as Dasti process. On the other hand , the language of Rule 8 is very flexible., The words 'as nearly as may be' in that Rule are wide enough t permit the issue of Dasti process for witnesses, also. However, it seems tome that such process is not to be issued in the first instance. It is to be issued only if the party requests for the issue of such process or is other wise ready and willing to do so when he is precluded by his own default from receiving further assistance of this Court for the issue of process or summonses for service in the normal way through the process serving Agency of the Court. In such cases, permissions granted to the defaulting party to take out Dasti process only as a matter of concession.
8. In AIR 1953 Madh Bha 48, the trial Court had refused to issue summonses to the witnesses of a party on the ground that the applicant had failed to accompany the process-server for the service of the summonses on the witnesses. The party was also directed to produce his witnesses inth Court himself on the next day of hearing and to paycosts of the adjournment. Dixity J. held that the order of the trail Court was clearly illegal, because there was no provision in the code of Civil Procedure casting an obligation on the party to accompany the process-server for having the summonses served on his witnesses. It is the duty of the process-server to serve the summonses and if he fails to do so. Parties cannot be punished for his negligence.
9. In that case, the summonses had been issued to the applicant's witnesses and the process -server returned them unserved with the remark that the applicant did not accompany him for effecting the service . In these circumstances , it was held that the trail Court was not justified in giving adjournment costs to the non-applicant and directing the applicant to bring his witnesses with him on the next date of hearing.
10. I have no quarrel with the principle enunciated by Dixit J. in roshan Singh's case AIR 1953 Madh Bha 48. I have already observed above that the court cannot compel a party against his willm, to obtain summonses and to serve them either himself r through his agent on the witnesses cannot be issued owing to the default of the party concerned, such as non-deposit of process-fee or belated deposited of process-fee so that there is not sufficient time for the issue and service of the summonses on the witnesses, he disentitles himself to the assistance from Court . The Court may either refuse to grant adjournment or permit him at his own request to obtain summonses for service on the witnesses himself or through his agent . But even in such a case the Dasti process is to be issued only at the request of th party and not otherwise.
11. In the case before me, the trail Court directed the defendant to deposit process-fee within 3 days summoning witness named in the list fr 30-5-1968. The defendant actually deposited the process-fee on the 8th of 9th day, i.e., the 28th May, 1968. Only two or three days were left for effecting service. This time was obviously too short for this purpose . But in view of the fact that the defendant was no residing at Nabha and was away serving in the Army. The delay in depositing the process-fee could not be said to the deliberate . Nor was this circumstance by itself sufficient to jump to the conclusion that the defendant was deliberately indulging in dilatory tactics or abusing the process of the Court. Indeed, no such finding has been recorded in the impugned order by the learned trial Judge. I, therefore, think that the learned trail Judge was overhasty in passing the impugned order.
12. Promptitude and despatch in the despensation of Justice is a desirable thing but not at the cost of justice . All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper 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 form 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 th other side can be compensated by costs.
13. A single Judge of this Court in Bachan Singh's case , 1965-67 Pun LR (S. N.) 118 has laid down that where there had been no effort on behalf of the petitioner to prolong the proceedings or he was not guilty of any deliberate default in summoning his witnesses, the trial Court would not be justified in refusing its assistance to the petitioner to secure the attendance of his witnesses.
14. It must be remembered that R. 9 of Order 16 provides that summonses must be served on the witnesses in sufficient time is only a Rule in favour of the witnesses . It enjoys due diligence of the witnesses on the party. But it does not empower th Court to refuse the issue of summons to a witnesses on the ground of late application. Summonses cannot be refused on the ground that the party had refused to bring his witnesses himself or to carry out an illegal order of a court for Dasti service on the witnesses. Only if the Court finds that the issue of the summonses would amount to an abuse of the process of the Court, has it the inherent power to refuse to summon witnesses. (See AIR 1958 Andh Pra254)
15. Thus, contention no. 1 is not utterly without force; contention no. 2 is irrefutable.
16. Regarding the order impugned in Civil Revision 698 of 1968, it may be observed that it is manifestly erroneous in law. Private persons or parties to a litigation cannot be allowed to bring or handle judicial records in this manner. As already noticed above , the petitioner had, ;prior to the date of the impugned order, furnished a copy of the document , the original of which was in the record summoned. In no case, therefore, the process should have been issued Dasti casting the obligation on a party to bring the requisite record himself.
17. For the foregoing reasons, I would hold that the impugned orders in Civil Revisions 697 an d698 f 1968 are clearly erroneous and unjust. I would ,therefore, allow these revision -petitions, set aside those orders, and send the case back to the learned Subordinate Judge, Nabha, with the direction that he should give further opportunity to the defendant to summon his witnesses and the records through the Court on deposit of the process-fee within a reasonable time to be fixed by the Court . It will , however, fetter the discretion of the trial Court to refuse further assistance in the matter, if for reasons, to be recorded it comes to the finding that the defendant is intentionally prolonging the litigation and abusing the process of the Court.
18. Costs of both these revision-petitions shall, however, abide the decision of the suit in the Court below. Parties are directed (through their counsel) to appear in the Curt of the Subordinate Judge First Class, Nabha on 28-10-1968.
19. Revision allowed.