1. This is an application for revision of an order made by a learned Sub-ordinate Judge refusing to allow certain signatures to be examined by an expert and further refusing to summon the expert to give evidence at the cost of the petitioner.
2. The plaintiff desired that the genuineness of certain signatures should be considered and he applied that an expert should be summoned by the Court to examine the signatures and report thereon. This petition was refused as it was a belated one.
3. The plaintiff then applied that a summons should be served by the Court on a Mr. Bennet of Calcutta who is a hand-writing expert to appear in Court and give evidence as to the genuine-ness or not of the signature or signatures in question. The plaintiff asked for the summons to be issued at his expense; but the Court refused to issue the summons on this witness because the application was made at such a late stage:
4. The power of a Court to issue summonses to witnesses to attend to give evidence is dealt with in Order 16, Rule 1. The rule is as follows:
'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.'
5. It has been held that a party is entitled as of right to a summons so long as the application is made after the institution of the suit and before it is decided. It has farther been held that it does not matter that the application is made at a late stage of the proceedings. The Court must grant the application though it need not adjourn the hearing for the attendance of the witness summoned.
6. In the case of Krishna Churn v. Protab Chunder, 7 Cal. 560, it was held by a Bench of this Court that in all cases in which parties apply for a summons to compel the attendance of witnesses, or a summons to produce documents, or apply to have a document sent for under Section 137, Civil P. C., the Court ought not to refuse such application, merely because in its opinion the witnesses cannot be present, or the documents cannot be produced, before the termination of the trial.
7. In Bhagwat Das v. Devi Din, 16 ALL. 218: (1891 A. W. N. 45), a Banch came to the same conclusion. In that case they held that where a person making an application to a civil Court for witnesses to be summoned has negligently or with intention to delay the hearing postponed the making of his application for a summons until a time when it would be impossible to obtain the attendance of the witnesses at the hearing, the Court might properly refuse to adjourn the hearing, but nevertheless it would be the duty of the Court to order the summons asked for to issue.
8. From these authorities it is clear that the Court below should have issued the summons though it was not bound to adjourn the date of the hearing which had been fixed for 25th April 1949. Unfortunately, however, the Court refused to issue the summons.
9. In the result, therefore, this petition must be allowed and the order of the learned Judge set aside. The records must be returned forth-with to the lower Court and the parties should attend before that Court on Wednesday, 8th February 1960, when the learned Subordinate Judge should issue the summons asked for by the plaintiff and fix a date for hearing.
10. The rule is made absolute in these termswith costs.
11. Let the counter affidavit filed in Court to day be kept on the record.