Patna High CourtKumar Basant Narain Singh And Ors. vs The State Of Bihar on 18 April, 1958Equivalent citations: AIR1958PAT458, 1958(6)BLJR459, AIR 1958 PATNA 458, ILR 37 PAT 780Author:V. RamaswamiBench:V. RamaswamiJUDGMENT

 

R.K. Choudhary, J.1. This is a batch of ten Miscellaneous Appeals arising out of nine title suits. A batch of 246 suits had been instituted by different plaintiffs against the State of Bihar and others in the year 1948. After a protracted litigation for about ten years, the cases were ultimately fixed for hearing on 22-7-1957. Two days before that date, i.e., on 20-7-1957, an application for extension of time was filed on behalf of the plaintiffs on the ground of illness of the witnesses, but the petition for extension of time was rejected. On 22-7-1957, an application was made on behalf of the plaintiffs stating that Raja Bahadur Kamakhya Narayan Singh of Ramgarh and his representatives negotiated for a compromise in all the suits as between the State of Bihar and the Raja Bahadur and his transferees and that the compromise had been arrived at covering most of the suits and a copy of the terms of the agreement was attached with the application.It was also stated that the terms and conditions were finally confirmed by the Raja Bahadur and that it was expected that the formal order with regard to the filing of a joint petition of compromise will be issued by the Government of Bihar within a reasonable period. It was, therefore, prayed that the suits be adjourned for two months for the completion of the formalities of the compromise. The lawyer appearing for the State of Bihar, however, submitted that he did not receive any instruction from the Government in this regard and the cases were adjourned to 29-7-1857.On that date, on behalf of the defendant, the State of Bihar, a petition was filed stating that no terms and conditions of compromise had been settled between the parties. On the same Sate an application under Order 23, rule 3, Civil Procedure Code, was filed on behalf of the plaintiffs for recording the compromise and passing a decree in accordance with it. On 9-8-1957, several documents were filed on behalf of the plaintiffs which were treated as part of the application filed on 29-7-1957, for recording the compromise. 26-8-1957 was fixed for the hearing of the above application with a direction to the defendants to file rejoinder, if any, by 17-8-1957.Parties were directed to take note that the compromise matter will be definitely heard on 26-8-1957, and they were directed to take all steps within proper time. They were also directed to take steps at once if they wanted to examine any witness on commission or to call for any document or to summon any witness. On 17-8-1957, a rejoinder was filed on behalf of the defendant, the State of Bihar, challenging the settlement of the dispute by compromise between the parties.On that date a list of witnesses to be summoned by the court and a petition with a prayer for issue of summonses to the witnesses were filed on behalf of the plaintiffs and a sum of Rs. 1000 as expenses for witnesses was deposited in court and process fee of Rs. 36/- for summoning the witnesses was filed on behalf of the plaintiffs. The list of witnesses contained the names of 48 witnesses including some Ministers, Secretariat Officers, Members of the Legislative Assembly and the Members of the Parliament who were either in Calcutta or at Patna or at New Delhi.As a sum of Rs. 1,000 only had been deposited towards the cost of witnesses, the plaintiffs were directed to deposit a sum of Rs. 6,000/-more towards the same by 22-8-1957, and they were further required to give an undertaking to the court that they will deposit forthwith any extra amount the court will order in future to meet the cost of the witnesses. It was also ordered that after compliance of this order necessary orders will be passed for summoning the witnesses.The plaintiffs were also directed to file necessary processes with correct addresses of the witnesses by 22-8-1957. It appears that there was a different batch of 33 title suits which were also alleged to have been settled under the compromise along with these 246 suits but the plaintiffs of most of those 33 suits did not file any application for recording the compromise-On 20-8-1957, an application was filed on behalf of the plaintiffs of these suits for issuing notices to the plaintiffs of most of the other batch of the 33 suits and a prayer was made for adjourning the hearing of the compromise matter for a month.On 22-8-1957, the suits were adjourned to 24-8-1957, as the plaintiffs wanted to obtain the photographs of the copies of the documents filed by the defendants. In the meantime, on 23-8-1957, the plaintiffs got the hearing of the suits stayed by an order of the District Judge passed in Miscellaneous Case No. 23 of 1957. The cases were directed to be put up on 15-11-1957, awaiting further information from the District Judge.On 31-10-1957, however, the court received information from the District Judge vacating the

stay order and the parties were directed to come ready for the hearing of the compromise matter on the date fixed, that is, on 15-11-1957, and all concerned were informed of this order. Four days before the date fixed for the hearing, i.e., on 11-11-1957, the plaintiffs filed a petition praying that their prayer made on 20-8-1957, for issuing notices to the plaintiffs of the other suits must be disposed of before the hearing of the compromise matter.This application was directed to be put up on the date fixed, i.e., on 15-11-1957. On that date the plaintiffs did not take any step and the cases were directed to be put up on the next date for orders on the petition filed on behalf of the plaintiffs on 20-8-1957, for issuing notices to the plaintiffs of the other 33 suits. On that date the court, for reasons given in its order, rejected the prayer for issuing notices to the plaintiffs of the suits referred to above and fixed 2-12-1957, for hearing of the compromise matter.As the plaintiffs had not deposited the sum of Rs. 6,000 towards the cost of witnesses, as directed by order dated 17-8-1957, the court gave them three days' more time to deposit the same and to get the summonses to the witnesses served through special peons as the time was short. It was also made clear in the order that failing compliance of the same, the petition for summoning the witnesses through court shall stand rejected. On 18-11-1-957, the plaintiffs prayed for 10 days' more time to deposit the amount of cost and they were given time till 21-11-1957, for depositing the amount.On that date the plaintiffs deposited only a sum of Rs. 5,000 but they did not file the forms of summonses to the witnesses duly filled up and as such the summonses to the witnesses could not be issued. On 25-11-1957, the plaintiffs deposited the balance of Rs. 1,000 towards the cost of witnesses and filed processes to be issued to these witnesses. It also appears that the plaintiffs made a prayer for Issue of dasti summons to the witnesses and the court allowed the prayer at their entire risk for the date fixed. On 29-11-1957, a revision application was filed in this Court on behalf of the plaintiffs being Civil Revision No. 971 of 1957 which came up for admission on 2-12-1957, and the following order was passed by this Court:"This is an application directed against the order dated 7-11-1957, whereby the trial court refused to issue notices upon the parties in cases outside the batch of 246 title suits. Fortunately, the learned advocate for the State of Bihar is present and the parties have agreed that the matter under Order 23, Rule 3 should be taken up for hearing on 11-1-58. Mr. Baldeva Sahai, appearing for the petitioner undertakes to get applications filed on behalf of all the parties who are interested in the compromise of suits other than 246 title suits and even if any of them does not appear he will not apply for further adjournment of the case. With this observation this application is dismissed and the court is directed to take up the matter under Order 23, Rule 3 for hearing in the light of the aforesaid compromise on 11-1-1958."The result of this order was that the cases had to be heard with the consent of the parties on 11-1-1958. From 2-12-1957, till 2-1-1958, the plaintiffs did not take any step for having the summonses served on their witnesses. On 2-1-1958, the plaintiffs filed a petition along with processes praying for issue of dasti summonses to their

witnesses and the prayer was allowed for summoning the witnesses for the date fixed at the entire risk of the plaintiffs.Since the Presiding Officer of the court was to go on leave from 11-1-1958, an order was passed on 9-1-1958, for placing the cases for hearing of the compromise matter on 20-1-1958, and parties were directed to come ready on that date. Information of this order was given to the lawyers of the parties. On 11-1-1958, the plaintiffs filed process fee of Rs. 37-8-0 along with processes. Mr. S. K. Jha another Subordinate Judge, who was on that day in charge of the court in which these cases were pending, passed an order that the time available being short, the plaintiffs may take dasti summonses" to their witnesses.On 16-1-1958, another application was made on behalf of the plaintiffs for extension of time on the ground that some of them had gone to jail in a case under the B. M. P. O. Act as well as on the ground that witnesses had to be summoned through court. That prayer was rejected on 17-12-1958, and parties were directed to come ready on the date fixed for hearing of the compromise matter. On 20-1-1958, the plaintiffs again made an application for time but that having been rejected, parties were asked to proceed with the hearing of the compromise matter and as it was already late on that date, the hearing of the matter was adjourned to the next date. On the next date, viz, 21-1-1958, the plaintiffs did not turn up in spite of repeated calls and their lawyers submitted that they had no further instruction to proceed with the matter.The application for recording compromise, therefore, was rejected by the court on that day both on the ground that it had not been pressed and that there was no evidence in proof of the allegations made in the application. Against this order the aggrieved parties in nine of the title suits have presented these ten miscellaneous appeals in this Court. One of them is from the batch of 246 title suits and the others are from the other batch of title suits.2. Mr. P. R. Das, appearing for the plaintiffs-appellants in all these appeals, has contended that the court on its own motion adjourned the hearing of the compromise matter from 11-1-1958 to 20-1-1958, and the plaintiffs were as a matter of right entitled to have their witnesses summoned through court for attending the court on 20-1-1958.He has conceded that on the previous occasions orders for issue of dasti summonses were passed at the risk of the plaintiffs and if the matter under consideration would have been heard on 11-1-1958, they could not have any say in the matter. But, his argument is that since the cases were adjourned from that date to 20-1-1958, for which date the witnesses of the plaintiffs were never summoned to appear, they have a right under the law to have their witnesses summoned through court. Reliance has been placed in support of this contention on Order 16, rule 1of the Code of Civil Procedure, which is in these terms :"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."Rule 8 of that Order provides that every summons under this Order shall be served as nearly

as may be in the same manner as a summons to a defendant. A proviso has been added to this rule by the Patna High Court that a summons under this Order may by leave of the Court be served by the party or his agent, applying for the same, by personal service and that if such service is not effected and the court is satisfied that reasonable diligence has been used, by the party or his agent to effect such service, then the summons shall be served by the Court in the usual manner.On the above provisions of law an argument has been advanced that a party is entitled to have witnesses summoned at any time after the institution of the suit and before its termination and the mode of dasti service cannot be forced on a party against his will. As a broad proposition of law there can be no doubt as to its correctness. Cases have laid down that such a right is given to the parties under law and the court cannot refuse to issue summonses to the witnesses.But, at the same time, it cannot be denied that the court has always a power to refuse to summon witnesses if the prayer for summoning; the witnesses is not bona fide or is an abase of the processes of the Court.In the case ofRam Phul Pandey v. Waned Ali Khan, 14 Suth WR 66 (A), it was held that a court has no power to refuse to summon witnesses when expressly requested by a party to do so, unless the witnesses are required to be summoned in such a manner or in such numbers as clearly indicates a vexatious desire of obstructing the course of justice.In the case ofVeerabadran Chetty v. Nataraja Desikar, ILR28 Mad 28 (B), a Bench of that Court held, that a litigant's privilege of taking out summonses to witnesses is subject to the control of the tribunal which is called upon to enforce their attendance, though such control will be exercised sparingly and only in exceptional cases and that this control is an instance of the authority of every court of competent jurisdiction to prevent abuse of its process.In the case of Mt. Latifannissa Bibi v. Alimulla, AIR 1929 Pat 622 (C), on which reliance has been placed by Mr. Das, Fazl Ali J., (as he then was) sitting singly, stated the law to be as follows :"Where an application is made to the court to issue summonses to the witnesses, however belated that application may be, provided it is made bona fide, although it is open to the court not to adjourn the hearing of the case On the date fixed for hearing, it is not within the province of the court to refuse to summon the witnesses."His Lordship has, however, made it perfectly clear that if the application is not a bona fide one, the court may not issue summons. In the case of Aswini Kumar Bhandari v. Anukul Chandra Bhandari, AIR 1950 Cal 326 (D), also it has been held that parties are entitled as of right to summons so long as the application is made after the institution of the suit and before it is decided and that it does not matter that the application is made at a late stage of the proceedings. It was further held that the court must grant the application though it need not adjourn the hearing for the attendance of the witness summoned.The law, therefore, is perfectly clear that as a matter of general rule the court is bound to issue summonses to the witnesses if an application is made for summoning them at any time

after the institution of the suit and before its decision and the court is not entitled to refuse to issue summonses to the witnesses on the ground that the application was made at a very late stage though the court is not bound in all cases to adjourn the hearing of the case to enable the witnesses to attend on the date of the hearing.But there is an exception to this general rule and that exception is that where the court thinks that the prayer for issue of summonses to witnesses has not been made bona fide or has been made as an abuse to the process of the court or the prayer is vexatious, it has got inherent jurisdiction to refuse the prayer. The power is inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure.3. From the facts of the present case, as stated above, it is manifest that the application of the plaintiffs was not bona fide and that they were guilty of wilful laches and negligence. Whatever may have been the cause in prolonging the litigation for such a long period may not be relevant for the purpose of the present enquiry, but it is clear that though opportunities were given to the plaintiffs to have their witnesses summoned, they failed to avail of them.On 9-8-1957, the court definitely fixed 26-8-1957, as the date for the hearing of the compromise matter and the parties were directed to take steps for summoning the witnesses, if they so liked, at once. The plaintiffs, however, for the first time made an application for summoning the witnesses-on 17-8-1957, but did not deposit sufficient amount of money as expenses for the witnesses. Even the processes were filed with incorrect addresses.The court, therefore, gave them time till 22-8-1957, to deposit a sum of Rs. 6,000 and to file necessary processes with correct addresses of the witnesses. Instead of complying with the above order, the plaintiffs, on 20-8-1957, made an application for issue of notices to the plaintiffs of the other 33 suits, referred to above. Thereafter, the hearing of the suits was stayed by the order of the District Judge but the stay order was vacated subsequently and the intimation of vacating the stay order was received by the court on 31-10-1957. 15-11-1957 was the date fixed for the hearing of the compromise matter but on that date the plaintiffs did not take any step.Later on 2-12-1957, was the date fixed for the hearing of the compromise matter and the plaintiffs were directed to comply with the previous order of the court requiring them to deposit a sum of Rs. 6,000 and to file processes with correct addresses. The hearing of the compromise matter was fixed with the consent of the parties in the High Court to be on 11-11-1957, but notwithstanding that the plaintiffs did not take any step for getting their witnesses summoned for about a month and for the first time, on 2-1-1958, they applied for issue of dasti summonses and the court passed an order for issue of dasti summonses at their risk.On 11-1-1958, they filed process fees along with processes and the Presiding Officer being on leave the Subordinate Judge in charge directed the plaintiffs to take dasti summonses to their witnesses. No objection was raised to this order by the plaintiffs on that date. But, on 16-1-1958, they made an application for extension

of the date for hearing the compromise matter on the ground that they had to summon their witnesses through court.That application having been rejected, the matter was put up for consideration on the date fixed, viz., 20-1-1958, but the plaintiffs failed to appear and press their application. The court, therefore, rejected their application for recording the compromise. It is manifest, therefore, that the plaintiffs always failed to take proper steps in time and purposely managed to take steps for having their witnesses summoned at the last moment for which there could be no excuse.4. The conduct of the plaintiffs in having their witnesses summoned appears to be hopeless on another ground also. On two occasions, i.e., on 25-11-1957 and 2-1-1958, the plaintiffs took dasti summonses for getting them served on their witnesses, but they did not file the service report on any of the two occasions. The record of the case, therefore, does not show as to why the summonses were not served on the witnesses. If the witnesses refused to accept the summonses or the summonses could not be served due to any other reason, the plaintiffs in all fairness ought to have submitted a report to that effect in court.From the list of witnesses that they filed it appears that most of them are the own men of the plaintiffs who could not be expected to have refused to accept the summonses. They are (1) Raja Bahadur Kamakhaya Narain Singh who is said to have negotiated for the compromise on behalf of the plaintiffs, (2) Rani Rikhinath Kueri, (3) Sri Bateshwar Prasad Singh, who represented Raja Bahadur Kamakhaya Narain Singh in the negotiation for compromise, (4) Sri Balbhadra Prasad Sinha, Advocate, who is appearing for these plaintiffs in these appeals, (5) Sri Ram Kumar Singh, (6) Sri Jadunandan Prasad, (7) Sri Girija Sahay, (8) Sri Binda Ram, (9) Yusuf Driver, (10) Sri Jugal Kishore Prasad etc. etc. 
 

 The fact that the plaintiffs could not serve dasti summonses that they had taken even on these witnesses speaks for itself the mala fide intention of the plaintiffs to prolong the hearing of the matter under consideration. All these facts and circumstances were before the court when it directed the plaintiffs, on 11-1-1958, to take out dasti summonses to their witnesses. In my opinion, in view of the facts and circumstances of these cases, there was nothing wrong with the order passed by the court on that date and there is no merit in these appeals.5. These appeals fail on another ground also. Order 16, rule 1of the Code of Civil Procedurerequires the court to issue summonses to persons whose attendance is required if an application is made to the court in that regard. Mr. Das has conceded that prior to 11-1-1958, the plaintiffs were guilty of laches. Therefore, it has to be seen whether on 11-1-1958, or subsequent to that date any application was made on behalf of the plaintiffs for service of summonses to their witnesses.Admittedly no written application to that effect was made in these cases on 11-1-1958. Mr. Das, however, contends that it, is not necessary that there should be a written application and an oral application may be enough. No authority has been cited in support of this contention. Reading the rule I have no doubt that the application required is a written application. As, admittedly, no such written application was

made on 11-1-1958, the court could not be bound to Issue summonses to the witnesses of the plaintiffs.Assuming that an oral application could be made, the order sheet shows that even that oral application was not made. All that was done was that the plaintiffs filed process fees and processes. Mr. Das has contended that the plaintiffs having filed the process fees and processes must be deemed to have made an application by Implication. This argument was advanced only to be rejected. No authority has been cited in support of an application by implication. A more hopeless suggestion I never remember to have heard.That being the position, the court did not commit any error in not summoning the witnesses through court and directing the plaintiffs to take dasti summonses to their witnesses. On 16-1-1958, the plaintiffs made an application for extension of the date for hearing and one of the grounds for that prayer was that they have to summon their witnesses through court. But, they never made an application even on that date for issuing summonses to their witnesses. The only prayer that they made was to extend the date of hearing at least by a month. There was, therefore, no application before the court for summoning the witnesses through court and the question of the court having summoned them did not arise.6. The learned Government Advocate in support of the order under appeal has raised a further argument that even on merit there could be no recording of the compromise as there was no compromise at all. His contention is that all the papers that the appellants have filed as annexures to the petition for recording the compromise, the originals of which were produced by the State of Bihar, only show that there was a negotiation for compromise and that some of the Government Officers were in favour of the compromise.According to the learned Government Advocate they at best could show that recommendation was made to the Government for having the matter amicably settled but they do not show that any final decision was reached by the Government or even if any such decision was reached, it was communicated to the plaintiffs and unless that had been done, there could not be a contract in law for compromise binding the parties. There seems to be much force in this argument.It has been suggested on behalf of the respondents, the State of Bihar, that this Court should decide, on the materials available on the record, that there had never been a compromise. Mr. Das, however, contended that it is not possible for him to say whether all the documents are on record to prove the matter under consideration. He has drawn our attention to the list of witnesses filed on behalf of the appellants in which they have called for various documents from various witnesses.The court below did not consider the matter on merit and Mr. Das has, therefore, rightly contended that it is not possible for him to advance any argument on the merit of the case, in view of my decision on the first point, I do not propose to decide the matter under consideration on merit. The appellants having failed to press their application under Order 23, Rule 3, Civil Procedure Code, on the date on which it was finally fixed to be heard and having been

found to be guilty of wilful laches and negligence, cannot have any legal grievance against the order under appeal. No illegality in that order, as already observed, has been shown. The appeals, therefore, are without any merit.7. In the result, the appeals fail and they are dismissed with costs.V.   Ramaswami,   C.J.8. I agree.