Case Note & Summary
The petitioner, M/s. Krithi Constructions, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 03.03.2014 passed by the XXVIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore, in O.S. No. 15959/2005. The impugned order dismissed the petitioner's application filed under Order 16 Rule 21 read with Section 151 of the Code of Civil Procedure, 1908 (CPC). The petitioner had sought to examine a witness, but the trial court dismissed the application on the ground that the witness was not produced. The High Court observed that under Order 16 Rule 21 CPC, the court is required to issue summons to the witness, and the party is not responsible for serving the summons. Since the court had not issued summons, the dismissal was not justified. The High Court set aside the impugned order and allowed the application, directing the trial court to issue summons to the witness and proceed in accordance with law. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Service of Summons - Order 16 Rule 21 CPC - Dismissal for Default of Witness - The trial court dismissed the application for failure to produce a witness, but the summons were not served by the court as required under Order 16 Rule 21 CPC. The High Court held that the dismissal was erroneous as the party cannot be penalized for the court's failure to serve summons. (Paras 1-3) B) Civil Procedure - Inherent Powers - Section 151 CPC - The court's inherent powers cannot be used to dismiss an application for default of witness when the procedural requirement of service by court is not complied with. (Paras 1-3)
Issue of Consideration
Whether the trial court was justified in dismissing the application filed under Order 16 Rule 21 read with Section 151 CPC for failure to produce a witness, when the summons were not served by the court as required.
Final Decision
The writ petition is allowed. The impugned order dated 03.03.2014 passed by the XXVIII Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bangalore in O.S. No. 15959/2005 is set aside. The application filed under Order 16 Rule 21 read with Section 151 CPC is allowed. The trial court is directed to issue summons to the witness and proceed in accordance with law. No order as to costs.
Law Points
- Order 16 Rule 21 CPC
- Section 151 CPC
- Service of summons by court
- Dismissal for default of witness
- Proper service requirement
