HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CRev No. 140 of 2007 I-Up Bottling Company Petiotioner Bank of India Respondent !Mr. Anil Sethi, Advocate. ^Mr. C. L. Razdan, Advocate. MR. JUSTICE J.P.SINGH, JUDGE Date : 04/02/2009 : J U D G M E N T :
The Bank of India had filed a suit for recovery of Rs.
54,32,677.01 in this Court more than twenty years ago. This suit was
later transferred to the Court of Additional District Judge (Bank
Cases) Jammu, for its disposal.
Taking note of earlier interim orders passed during the currency
of the suit, the trial Court, vide its order of August 10, 2007, had
allowed opportunity to the petitioner- defendant to deposit Rs.
10,000/- as diet money for its out-station witnesses appearing at serial
nos. 5 to 10, 14, 20 and 21 of the list of witnesses, and Rs. 1500/- each
for rest of its witnesses who had to come from Jammu.
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Petitioner-defendant did not comply with this order as a result
whereof the petitioner’s right to summon its witnesses through the
process of the Court was closed. The petitioner was, however,
permitted to produce its witnesses on its own.
Questioning the trial Court’s orders dated August 10, 2007 and
September 10, 2007, petitioner’s counsel submits that as the trial
Court had earlier accepted Rs. 100/- as diet money of the ex-station
witnesses, its order of August 10, 2007 was not justified, because no
provision of the Code of Civil Procedure may permit such a course.
He submits that order passed by the trial Court on September 10,
2007, closing petitioner’s right to summon its witnesses through Court
process, too, for the similar reasons, was liable to be set aside.
Learned counsel for the Bank, on the other hand, has justified
the trial Court’s orders, urging that ex-station witnesses, particularly
those enjoying the status of Chairman and Zonal Officer of Scheduled
Banks, cannot be compelled to appear in the Court unless the
petitioner had deposited in the Court the actual expenses which these
witnesses would have to defray to reach the Court house and spend for
their stay at Jammu.
I have considered the submissions of learned counsel for the
parties.
Before dealing with the submissions made by learned counsel
for the parties it would be profitable to refer to what had weighed with
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the trial Court to direct the petitioner to deposit Rs. 10,000/- each for
out-station witnesses, holding the status of Chairman and Zonal
Officer of the Bank. This order reads thus:-
“In order to succeed in their ulterior motive to
protract the litigation the defendants further
submitted a long list of 21 witnesses without
stating any specific purpose for which they are
called i.e. as to what they have to depose and as to
what they have to prove from the witness and their
diet expenses have been fixed at Rs. 100/- each
though the witnesses have to be summoned from
Mumbai, New Delhi, Chandigarh and Gaziabad
(UP) respectively. If a witness that too of a status
of Chairman of a Bank or the Zonal Officers of the
Bank who have to come from outside the State it
will take at least three days for them to appear in
this Court and that too if they travel by air. As such
the to and fro air fair will not cost them less than
Rs. 10,000/- each only, for travel even if no diet
expenses are defrayed to them for the minimum
three days they have to spend as appearing as a
witness. The present application has simply been
filed by the defendants so that the litigation does
come to a logical conclusion and in my view, if
such a practice is not curbed or discouraged then
their will no end to the present litigation and it will
take another two decades to see that the light of the
day.
Viewed thus, it is directed that in case the
defendants are still seriously interested to get the
witnesses mentioned in the list of witnesses to be
summoned by this Court they shall deposit Rs.
10,000/- (Rupees Ten Thousand only) each for the
rest of the witnesses who have to come from
Jammu on or before the next date fixed positively
with a specific purpose for which the witness is
proposed to be produced and with a further
condition that they shall defray the diet expenses if
found still insufficient at the time of their
examination, failing which the defendants shall
produce the said witnesses at their own on the next
date fixed.”
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I have considered the provisions of Order 16 Rule 2 of the
Code of Civil Procedure in terms whereof the Court is empowered to
require a party desirous of seeking summons to secure the presence of
its witnesses, to pay into the Court such sum as may appear to the
Court to be sufficient to defray the travelling and other expenses of
the persons so summoned, in coming to and from the Court, in which
they were required to attend.
In the event of a Court’s finding that the amount deposited by
the party, desirous of securing the presence of the witnesses through
Court process, was not sufficient, resort may be made by the Court to
the provisions of Order 16 Rule 4 of the Code of Civil Procedure to
direct such party to deposit such expenses or reasonable remuneration,
which, according to Court would be necessary to defray the travelling
expenses of the witnesses. Order 16 Rule 4 of the Code of Civil
Procedure, for facility of reference, is reproduced hereunder:-
” 4. Procedure where insufficient sum paid in
(1) Where it appears to the Court or to such officer as it
appoints in this behalf that the sum paid into Court is
not sufficient to cover such expenses or reasonable
remuneration, the Court may direct such further sum to
be paid to the person summoned as appears to be
necessary on that account, and, in case of default in
payment, may order such sum to be levied by
attachment and sale of the moveable property of the
party obtaining the summons, or the Court may
discharge the person summoned without requiring him
to give evidence; or may both order such levy and
discharge such person as aforesaid.
Expenses of witnesses detained more than one day:
(2) Where it is necessary to detain the person
summoned for longer period than one day, the Court
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may, from time to time, order the party at whose
instance he was summoned to pay into Court such sum
as it sufficient to defray the expenses of his detention
for such further period, and, in default of such deposit
being made, may order such sum to be levied by
attachment and sale of the moveable property of such
party; or the Court may discharge the person
summoned without requiring him to give evidence; or
may both order such levy and discharge such person as
aforesaid.”
Power under Order 16 Rule 4 of the Code may be exercised by
the Court even before issuance of summons to the witness, for there is
no disabling provision in the Code which may require making up of
such deficiency only when the witness appears in the Court. This is so
because summons for appearance of a witness in civil cases and for
his stay for more than one day, may be issued by the Court only when
it is satisfied that the sum deposited by the party desirous of
summoning the witness was sufficient to defray the travel and other
expenses of the person summoned and for his comfortable stay for the
period he is so required to appear in the Court.
I therefore do not find substance in Mr. Anil Sethi’s submission
that the trial Court should have first issued summons to the ex-station
witnesses on the meager amount of Rs. 100/- which had been earlier
deposited by the petitioner-defendant to secure the presence of
persons enjoying the status of Chairman and Zonal Officer of a
Scheduled Bank, and thereafter called upon the petitioner-defendant
to deposit more money in case it was so demanded by the witnesses.
This is so because a person enjoying a higher status and used to a
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better life style because of the nature of his job, cannot be compelled
to travel by spending on his own or on account of his employer or on
amount which may be insufficient to defray his travel and other
expenses to which he may be entitled under rules.
I, therefore, do not find any irregularity or illegality in the order
of the trial Court, directing the petitioner to deposit Rs. 10,000/- for
each ex-station witness and Rs. 1500/- for the witnesses who had to
come from Jammu.
As the petitioner had failed to comply with order of August 10,
2007, so the resultant order passed by the trial Court, refusing to
summon the witnesses but permitting the petitioner to produce its
witnesses on its own, too cannot be faulted.
For all what has been said above I do not find any merit in this
revision petition, which is, accordingly, dismissed.
(J. P. Singh)
Judge
Jammu
February 4, 2009
Anil Raina, Secy.