1. This petition for revision of order dated the 19th of June, 1971, passed by Shri Harnam Singh, Sub ordinate Judge 1st Class, Chandigarh, has arisen from a suit brought by the petitioner firm (hereinafter referred to as the firm) against the respondent Corporation (hereinafter called the Corporation) for recovery of Rs.8,174.82 and the facts leading to it may be shortly stated. When the case was at the evidence stage, the firm made an application praying that it be allowed to produce in evidence a register containing entries in respect of some gunny bags which were in dispute. The application was rejected by Shri Inder Mohan Malik, the then presiding officer of the trial Court, and the firm had to come up in revision to this Court. By my order D/-22-4-1970, in Civil Revn. No. 204-A of 1970 (Punj and Har) I gave a direction that the firm would be allowed to produce the register and given a proper opportunity by the trial Court to prove its contents. The parties were directed to appear before the trial Court on the 22nd of May, 1970 but the case made no progress there till the 25th of July, 1970, when it came up for further proceedings before Shri Harnam Singh, Subordinate Judge 1st Class, Chandigarh, for the first time.
The firm presented to him an application under Rule 4 of Order 26 of the Code of Civil Procedure praying for the examination of 15 witnesses, who were all residents of Rajpura, on commission. That application was rejected and the learned Subordinate Judge also turned down a request for the examination of the witnesses in court on the ground that their names did not figure in the list of witnesses filed by the firm when it originally started examining its witnesses, which was on the 29th of October, 1969. The firm again came up in revision (Civil Revision No. 960 of 1970) to this Court. The matter came up before Mahajan, J., who thought that the learned Subordinate Judge had not applied his mind to the matter and directed the trial Court to allow an opportunity to the firm to summon its witnesses.
This was on the 25th of September, 1970. Thereafter the parties appeared in the Court of the learned Subordinate Judge on the 3rd of October, 1970, when the firm filed an application praying that 14 out of 15 witnesses above mentioned be summoned for the next date of hearing. This application was accepted and the witnesses were directed to be summoned for the 7th of November, 1970. A sum of Rs.70/-on account of 'diet money' was deposited by the firm in court on the 3rd of October, 1970 itself. The case that lingered on for one reason or the other till the 19th January, 1971, when 4 additional issues (Nos. 10 to 13) were framed and the case was adjourned for the remaining evidence of the firm to the 20th February, 1971. On that date, however, the summonses issued to the witnesses were not received back and were directed to be served for the 27th of March, 1971. The orders passed on the next three dates may be reproduced here:--
'No P. W. is present. Summonses have been received back with the report that the addresses are incomplete. Counsel for plaintiff requests that summonses be given Dasti. This be done. Process fee in three days. To come upon 24-4-1971.'
Sub Judge I Class,
'3 P. Ws. examined. None else is present nor has any summons been received back after service. Summonses for the last date were received back with the report that the addresses are incomplete. Instead of supplying complete address, learned counsel for the plaintiff made a request that summonses be given Dasti. Accordingly summonses were given Dasti but the plaintiff has not brought back any summons. Last opportunity is given to the plaintiff to produce their evidence on 22-5-1971 at their own responsibility. No further opportunity will be given. * * * *'
Sub Judge I Class,
'3 P. Ws. examined. None else is present nor has any been served although last opportunity has been given to the plaintiff. Learned counsel for the plaintiff requests for one more opportunity for producing the evidence. In the interest of justice one more opportunity is given to the plaintiff to produce its evidence on 19-6-1971, subject to payment of Rs.40/-as costs. If process fee is paid in two days, summonses may be issued at the responsibility of the plaintiff. As requested by the counsel for plaintiff, summonses be given Dasti.'
Sub Judge I Class,
On the 19th of June, 1971, no witnesses for the firm were present. Summonses had been issued to six witnesses for that date. Two of them were received back with the report that the witnesses named therein were not available at the given address. The report on a third summons was to the effect that the witness mentioned therein was said to be out of station. Another witness named Parkash Chand had refused to accept service while Ram Chand and Raj Kumar, two other witnesses, were served with summonses but were not paid any 'diet money'. In these circumstances the learned Subordinate Judge thought that it was a fit case in which the evidence for the firm should be closed under Rule 3 of Order 17 of the Code of Civil Procedure. He was further of the opinion, however, that it was also 'a very lengthy case which cannot be disposed of forthwith.' Accordingly he adjourned it to the 29th of June, 1971, for the statement 'of the plaintiff' but refused to issue process for the service of the firm's witnesses although he observed that as the case was not being disposed of forthwith, the firm 'may bring its witnesses on the adjourned date.' It is this order of the trial Court of which the firm seeks a revision.
2. I do not think that the impugned order can be allowed to stand. It is the duty of the courts to enforce the attendance of the witnesses summoned by parties and, if necessary, by coercive process. The Code of Civil Procedure clothes them with the power in that behalf and also makes provision for adjournment of cases from time to time, if the interests of justice so demand. It is not disputed that in the present case the six witnesses, who were summoned for the 19th of June, 1971 are either the agents of the Corporation or persons working for those agents so that they would not be expected to willingly appear in Court at the instance of the firm but would have to be compelled so to appear by legal process. The firm was every time doing its best to assist the Court in making the witnesses appear before it (the Court) and it (the firm) cannot be penalized if it remained unsuccessful. On the 27th of March, 1971, the firm's counsel asked for summonses to be issued Dasti and they were so issued. It is true that on the next date of hearing those summonses were not received back but there is nothing to show that was on account of any default on the part of the firm. After the process-server had served the summonses or had failed to serve them, it was his duty to have returned them to the Court in time for them to be scrutinized on the next date fixed for the hearing of the case and it was not for the firm to 'bring back any summons.'
Burdening the firm with responsibility for service of the witnesses on the 24th of April, 1971 and the 22nd May, 1971, does not, therefore, appear to have been called for, it not having been found that it was the firm who had not cared to have the summons served. Again, if the address of any witness as supplied by the firm was incomplete, the firm could not have been required to complete it on pain of issuance of summons to that witness being refused but that was a course which the learned Subordinate Judge did not choose to adopt. As it is, out of the six witnesses above mentioned two were actually served with summonses for the 19th of June, 1971, but they did not appear and it was on account of no fault of the firm that the 'diet money' was not paid to them. Such money had been deposited by the firm in Court and should have been withdrawn by the process-server from the Court before he embarked on his mission of serving the summonses. All that the firm had to do was to take the process-server to accomplish. The firm, cannot, in these circumstances, be said to be responsible for the two witnesses not having been 'duly served.'
Another witness had refused to accept service and if he did not appear in Court on the date fixed, the firm was entitled to have his appearance enforced through coercive process. For his appearance and for that of the two witnesses to whom copies of summonses had been delivered, the firm was clearly entitled to another adjournment and since the case had to be adjoined in any event, it would have been only fair that the firm was also required to give complete addresses of its other three witnesses and an adjournment was granted to it for service of process over again on all its six witnesses, albeit that against some of them coercive process had to be issued. It is true that numerous adjournments had already been granted to the firm for producing its evidence but then the orders made by the learned Subordinate Judge from time to time do not appear to be calculated to secure the assistance of the firm in causing its witnesses to appear. On the other hand, those orders were passed as if it was primarily not the duty of the Court but that of the firm to secure the attendance of its witnesses, even though it was apparent that the witnesses summoned by the firm were not under its influence.
3. In the result, I accept the petition and set aside the impugned order. The case has already been pending at the trial stage for long and this is the third time that it has to be looked into by this Court on the revisional side. I think it would be in the interest of justice if the trial is henceforward entrusted to the Senior Subordinate Judge, Chandigarh with a direction that he shall have the six witnesses above mentioned served at the earliest after getting their complete addresses from the firm and shall then bring the case to a close with expedition to which end he may, if necessary, compel the appearance of the said witnesses through coercive process. I order accordingly. The parties are directed to appear in his Court on the 5th of October, 1971. There will be no order as to costs.
4. Revision allowed.