Kuldeep Singh and Others Vs Hans Raj and Others

L.N. Mittal, J.@mdashIn this revision petition filed by defendants no.1, 3 and 4 under Article 227 of the Constitution of India, challenge is to orders dated 19.11.2009 Annexure P-4, 20.12.2011 Annexure P-9, 16.01.2012 Annexure P- 10 and 06.02.2012 Annexure P- 11 passed by the trial Court. Vide order Annexure P- 4 passed on application Annexure P- 4 moved by plaintiff for depositing diet money of the witnesses, the trial Court permitted the plaintiff to deposit the diet money at his own responsibility. The witnesses summoned by the plaintiff through the said application included defendants no.1, 3 and 4/petitioners, besides registration Clerk. Vide order Annexure P-9, the trial Court held that plaintiffs (respondent no.1 and 2) could summon defendants no.1, 3 and 4 as witnesses. Vide orders Annexures P-10 and P-11, presence of defendant nos.1, 3 and 4 was sought to be enforced through coercive process by way of warrants. I have heard learned counsel for the parties and perused the case file.

2. Motion order dated 14.02.2012 is reproduced hereunder:

Counsel for the petitioner relying on two judgments of Privi Council in the cases of AIR 1938 59 (Privy Council) and Kishori Lal versus Chuni Lal, The Madras Law Journal Reporters, Vol. XIX Part VI, 187 and a judgment of Bombay High Court in case of Pirgonda Hongonda Vs. Vishwanath Ganesh and Others, contended that opposite party should not be allowed to be summoned as witness by the other party and at best adverse inference can be drawn against the party which does not appear as witness. It is also submitted that judgment of Patna High Court in the case of Sri Awadh Kishore Singh and Another Vs. Sri Brij Bihari Singh and Others is distinguishable. It is also submitted that facts mentioned in paragraph 2 of application Annexure P-7 moved by the plaintiffs already stand admitted and therefore, defendants No. 1, 3 and 4/petitioners are not required to be summoned as witnesses, when the facts for which they are sought to be summoned as witness already stand admitted in pleadings.

Notice of motion to respondents No. 1 and 2/plaintiffs only for 19.04.2012.

Liberty to serve respondents No. 1 and 2 through their counsel in the lower Court namely Mr. S. K. Goel, Advocate, Kurukshetra.

Meanwhile operation of impugned orders of the trial Court shall remain stayed, subject to the condition that the petitioners, who have earlier defied the orders of the trial Court, shall deposit Rs. 25,000/- with the trial Court within a week.

3. Since the facts sought to be proved by summoning defendants no.1, 3 and 4 as witnesses by the plaintiffs stand admitted by the defendants in their written statement, there is no necessity of summoning the petitioners as witnesses of plaintiffs.

4. In view of the aforesaid, the instant revision petition is allowed. Impugned orders Annexures P-9 to P-11 passed by the trial Court are set aside. Order Annexure P-4 to the extent of permitting deposit of expenses of petitioners as witnesses is also set aside. Petitioners shall not be summoned as witnesses of plaintiffs. The amount of Rs. 25,000/-, if deposited by the petitioners with the trial Court pursuant to motion order dated 14.02.2012 passed by this Court, shall be refunded to the petitioners.