Report No. 54

Chapter 16

Summoning and Attendance of witnesses Introductory

16.1. After the defendant has been served, and the pleadings filed, and the issue framed, evidence will have to be led (unless the case is disposed of without issues). For that purpose, it becomes necessary to summon and compel the attendance of witnesses. This is dealt with in Order 16, the provisions whereof are ultimately derived from an Act of 1853.1 The body of the Code2 exempts certain persons from being summoned to attend.

1. Section 12, Act 19 of 1853.

2. Section 132 et seq.

16.2. As a matter of historical interest, it may be noted that a Central Act of 18551 provided that a person known to be of unsound mind should not be summoned as a witness without the previous consent of the court. This provision was repealed when the Evidence Act of 1872 came into force. Since such a person is not a competent witness under the Evidence Act, a party would not find it useful to summon him.

1. Act 2 of 1855, section 14.

16.2. Most of the provisions in Order 16 deal with matters of detail. We shall deal with such of them as require consideration.

Order 16, rule 1

16.3. Under Order 16, rule 1, 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. The words "may obtain" seem to have led to an argument to the effect that if a party applies for a summons, the court is bound to issue it irrespective of any other considerations. The argument has not been accepted in the categorical form stated above. Since it has been stated in some suggestions made to the Commission that the court should have discretion to refuse to issue a summons, the case law on the subject has been examined.

16.4. The case law on the subject shows that the position, is broadly speaking, as follows1:-

(a) It is the duty of the Court2 to summon the witnesses for whose attendance an application is made by a party, and a court cannot reject such an application on the ground that it has been made too late. It would be open to the court in such a case, if it finds that the application has been made late, not to adjourn the hearing of the case on the date fixed for the hearing, even though the witnesses may not be present in court. But it is not within the province of the court to refuse to summon the witnesses for summoning whom an application has been made before the court.

(b) But, if the application is not a bona fide one, the court may not issue a summons.

1. Latifannisa v. Alimulla, AIR 1922 Pat 622.

2. (a) Saibai Govind v. Balakrishna, AIR 1925 Born 368.

(b) Sardari Lal v. Mehar Singh, AIR 1925 Lah 97.

16.5. The position was dealt with at length in a Punjab case.1 The High Court observed "Order 16, rule 1, Code of Civil Procedure, entitles the parties at any time after the suit is instituted to obtain on an application to the court or to such other officers at it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.

According to the proviso added by this High Court, no party who has begun to call his witnesses is entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be filed in court on or before the date on which the hearing of evidence in this behalf commences and before the actual commencement of the hearing of such evidence, without an order of the court made in writing and stating the reasons therefor.

Ignoring, for the moment, the proviso added by this court, it would seem clear that a party is, generally speaking, entitled as of right to summonses to witnesses, and if an application is made for the purpose, the court has to issue the summonses, though of course if the application is belated and the witnesses are for this reason not present, the court is fully competent to decline to adjourn the case for their attendance2 It may be conceded as held that if the application is not bona fide and is an abuse of the process of the court, then the court may be held to be possessed of inherent power to refuse to summon the witnesses if a party's case is not covered by the proviso to rule 1, Order 16 and there is no want of bona fide and no abuse of the process of the court, then the court would not be justified in refusing to a suitor process for his witnesses, whom otherwise the court is competent to summon: indeed, it is generally speaking a suitor's right to obtain such process and the court is expected to render in the normal course reasonable assistance in effecting service."

1. Jagir Singh v. Surjan Singh, ILR (1965) 2 Punj 504 (509), (Dua J.).

2. Case references cited in the judgment are omitted here.

16.6. No amendment on this particular point is required, in view of the position stated above.

Purpose of calling witnesses to be stated

16.7. There is, however, one matter on which an amendment is needed. We think that the purpose of calling a witness should be stated in an application under Order 16, rule 1.

Recommendation

16.8. Accordingly, we recommend the insertion of the following sub-rule in Order 16, rule 1 [after renumbering rule 1 as sub-rule (1) of rule 1].

"(2) The purpose of summoning a witness shall be stated in the application under this rule".

Order 16, rule 14

16.9. Order 16, rule 14 provides that where the court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, on its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document.

There is no power under this rule to summon a party as a witness. No doubt, the court can always examine a party present in Court, and recall any witness already examined.1 The Court can also, while issuing a summons, direct that the defendant shall appear personally.2 But there is, in our view, need for a direct provision enabling the Court to summon a party for giving evidence as a witness. This will to a great extent, help in stopping the malpractice of a party not appearing as a witness and forcing the other party to call him as a witness.

1. Order 10, rule 2, read with Order 10, rule 4.

2. Order 18, rule 17.

Recommendation

16.10. We, therefore, recommend that in Order 16, rule 14, the words "other than a party to the suit" should be replaced by the words "including a party to the suit".

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