Order 16 Rule 14 Code of Civil Procedure

1. Compulsory Attendance —
A Court can compel the personal attendance of any witness residing within the local limits of its jurisdiction, or without such limits if the person to be summoned is at a place, not more than fifty miles from the Court house or not more than two hundred miles if there is a railway communication or public conveyance for 5/6th of distance, provided that he is not exempted under any of the provisions of the Code of Civil Procedure, 1908. A proviso has been added to Order XVI, Rule 19, Civil Procedure Code in Punjab with the result that a Court situate in the State of Punjab may require the personal attendance of any witness residing in the State of Punjab or the Union Territory of Delhi. (High Court Notification No. 60 —General IX Y. 8, dated the 4th March, 1955).

2. Attendance of pardanashin ladies —
Under Section 132 of the Code of Civil Procedure, 1908, women, who according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal attendance in Court.

3. Other exemptions —
The Court has a discretion to exempt from attendance as witness any person who in the opinion of the Court, is from sickness or infirmity unable so to attend (Order XXVI Rule 1, C.P.C.), or being a Civil or Military Officer of the Government, cannot attend without detriment to the Public Service (Order XXVI Rule 4, C.P.C.). As regards the attendance of Patwaries in Civil Courts Part B of this Chapter should be referred to.

4. Evidence by Commission —
The Court may issue a Commission for the examination of a witness, whose attendance cannot be compelled according to law, or cannot be secured for any other sufficient reason in the circumstances specified in Order XXVI of the Civil Procedure Code.

5. Service of processes —
The general procedure for issue of processes to witnesses is the same as that in respect of defendants. For detailed instructions on the subject.

6. Non-attendance, proof of service—
Where a witness summoned to attend to give evidence or produce a document, fails to attend or to produce the document, without lawful excuse, the Court shall, on return of the service of the summons, examine the serving officer on oath, if his certificate has not been verified by affidavit and it may do so even when the certificate has already been so verified, to satisfy itself that the summons was duly served.

7. Proclamation, attachment and arrest in case of non-attendance — The Court, on being satisfied that the person summoned has intentionally failed to attend or to produce the document in compliance with such summons without any lawful excuse and that his evidence or the document is material, may, issue a proclamation requiring him to attend to give evidence or produce the document at a time and place to be named therein. Or, the Court, may, in lieu thereof, or in addition to it, issue a warrant, with or without bail, for the arrest of such person and may make also an order for the attachment of his property to such an amount as it deems fit to cover the costs of the attachment and any fine which may be imposed for his failure to attend, not exceeding Rs. 500. (vide Order XVI, Rule 10 Code of Civil Procedure, 1908).

8. Fine—
Whenever such person appears and satisfies the Court that he did not, without lawful excuse, fail to comply with the summons, the Court release the attachment or cancel the warrant of arrest, as the case may be. Where such person does not appear, or appears but fails to satisfy the Court that there was a lawful excuse for his absence, the Court may impose a fine, not exceeding Rs. 500 to be recovered by the attachment (if not already effected) and sale of his property (Order XVI, Rule 12, Code of Civil Procedure, 1908).

9. Party as witness—
It should be noted that, where a party to a suit is required to give evidence or produce a document, the provisions as to witnesses apply to him, so far as they are applicable.

10. Warrants against Government servants for non-attendance— The Judges wish to impress upon the Subordinate Courts the desirability of caution in issuing warrants of arrest against a person in Public Service, unless and until the Court is fully satisfied that he is willfully omitting to obey the summons. In most cases it will produce the desired effect if a notice is issued to the person at fault to show cause why he should not be proceeded against under the penal provisions of Order XVI and the attention of the superior officer is drawn to the conduct of his subordinate. Of course, in cases of pronounced refractoriness, the Courts can set the law in motion in any one or all of the forms, available to them.

11. Non-attendance, duty of parties and Courts—
In cases where proper service of summons has been effected but the witness fail to attend, either through negligence or in collusion with the party on whose behalf they have been cited, Civil Courts should use their powers to take penal action freely, and if parties are unwilling to take coercive action against their own witnesses, the issue of any further summons through the Court for their attendance should be refused. The Court should also, where necessary, take action themselves against defaulting witnesses. The provisions of Order XVI, Rule 16, should be studied and used, and if parties refuse to make an application under Order XVI, Rule 16(2), the Court may refuse to grant any further adjournment.

12. Prompt disposal of witnesses—
When witnesses are in attendance, every effort should be made to record their evidence promptly and they should not be required, as far as possible, to attend again at any adjourned hearing. In the case of businessmen and Government servants, the Court should, if possible, give them some indication as to the hour when their evidence is likely to be recorded; so as to avoid their being detained on the Court premises longer than may be necessary.

13. (a) Summoning Government servants to prove birth or death entries— In any case where a party to a suit wishes to prove the fact of a birth or death by reference to one of the registers of vital statistics he should be directed in the first instance to file a certified copy of the entry on which he relies. Civil Courts should refrain from summoning the clerks of Civil Surgeons‟ officer with the registers except where their presence is deemed absolutely necessary.

(b) Municipal records—
Similarly, the Court should not without sufficient reasons summon the original records of Municipal Committees and Property Tax authorities where the purpose could be served by the production of certified copies of these public documents. Whenever it appears necessary to summon the original records as for instance where signatures of a person on an application or plan etc. have to be proved, the Courts should as a rule, return the original record to the official producing the same soon after the witnesses relating to the document and present on that hearing have been examined. The original record should not be retained in Court except under exceptional circumstances, such as, where the authority concerned has declined to give the party a duly certified copy or where the original document appears to have been tempered with.

(c) Agreements with rulers of former Indian States—
In civil suits involving rights and property of Rulers of former Indian States, it often becomes necessary to prove the agreements respecting their accession to the Indian Union or their merger and integration into new political units. Such agreements with the Union Government are the acts of the sovereign authority and are therefore public documents within clause 1(1) of Section 74 of the Indian Evidence Act. These are also printed in “White Paper on Indian States,” a Central Government publication and are therefore, admissible, under Section 78(1) of the Act. These agreements can also be proved by the production of certified copies under Section 77 of the Act. A summons to the Government of India should therefore be avoided where all that is necessary is to prove the agreement. Apart from the trouble and expense involved to an officer of the Ministry concerned there is risk of mishap to or loss of these valuable documents. The Courts should not therefore summon the original agreements except in very special circumstances as, for example, where the direct testimony of an officer of the Ministry is necessary to elucidate any material point arising in the case.

RULES VIDE CODE OF CIVIL PROCEDURE, 1908

Order 16 Rule 14. Court may at its own accord summon as witnesses strangers to suit. Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the court may, of 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.

Order 16 Rule 15 Duty of persons summoned to give evidence or produce document.

Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purposes, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place.

Order 16 Rule 16. When they may depart.
(1) A person so summoned and attending shall, unless the court otherwise direct, attend at each hearing until the suit has been disposed of. (2) On the application of either party and the payment through the court of all necessary expenses (if any), the court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may Order him to be detained in the civil prison. HIGH COURT AMENDMENT Delhi, Himachal Pradesh, Punjab, Haryana, Chandigarh.- Add the following sub-rule (3): “(3) In the absence of the presiding officer the powers conferred by sub-rule (2) may be exercised by the Senior Subordinate Judge of the first class exercising jurisdiction at headquarters of the district, or by any Judge or court-official nominated by him for the purpose: (25.7.1938). “Provided that a court-official nominated for the purpose shall not order a person who fails to furnish such security as may be required under sub-rule (2) to be detained in prison but shall refer the case immediately to the presiding officer on his return.” (23.1.1940).

Oder 16 Rule 17. Application of rules 10 to 13. The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16.

Order 16 Rule 18. Procedure where witness apprehended cannot give evidence or produce document. Where any person arrested under a warrant is brought before the court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and, on such bail or security being given, may release him, and, in default of his giving such bail or security, may Order him to be detained in the civil prison.

Order 16 Rule 19. No witness to be ordered to attend in person unless resident within certain limits. No one shall be ordered to attend in person to give evidence unless he resides— (a) within the local limits of the court’s ordinary original jurisdiction, or (b) without such limits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and the place where the court is situate) less than five hundred kilometers distance form the court house: Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person. HIGH COURT AMENDMENTS Allahabad.- In Order 16, Rule 19(b): Insert the words ‘or private conveyance run for hire” between the words “public conveyance” and “for five-sixths”, and Punjab- Add the following proviso to Rule 19(b): “Provided that any Court situate in the State of Punjab may require the personal attendance of any witness residing in the Punjab or Delhi State.”

Order 16 Rule 20. Consequence of refusal of party to give evidence when called on by Court. Where any party to a suit present in court refuses, without lawful excuse, when required by the court, to give evidence or to produce any document then and there in his possession or power, the court may pronounce judgment against him or make such Order in relation to the suit as it thinks fit.

Order 16 Rule 21. Rules as to witnesses to apply to parties summoned. Where any party to a Suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.

HIGH COURT AMENDMENTS
Allahabad- Add the following rules:
“22. (1) Save as provided in this rule and in Rule 2, the Court shall allow travelling and other expenses on the following scale: (a) In the case of witnesses of the class of cultivators, laborers, and menials six annas a day; (b) In the case of witnesses of a better class, such as zamindars, traders, pleaders and persons of corresponding rank, from eight annas to two rupees a day, as the Court may direct; and (c) In the case of witnesses of superior rank, including officers of Government in receipt of a salary of not less than Rs. 200 a month from three to five rupees a day: Provided that where a Government servant is summoned to produce official documents or to give evidence of facts which came to his knowledge in the discharge of his public duties, he shall be paid travelling and other expenses at the rates admissible to him as for journeys on tour in accordance with the travelling allowance rules applicable to him. (4.3.1953). IIIustration

A post office or railway employee summoned to give evidence is entitled to demand from the party, on whose behalf or at whose instance he is summoned, the travelling and other expenses allowed to witnesses for the class or rank to which he belongs and in addition the sum for which he is liable as payment to the substitute officiating during his absence from duty. The sum so payable in respect of the substitute will be certified by the official superior of the Witness on a slip which the witness will present to the Court from which the summons issued.

(3) If a witness be detained for a longer period than one day, expenses of his detention shall be allowed at such rate, not usually exceeding that payable under clause (1) of this rule, as may seem to the Court to be reasonable and proper: Provided that the Court may, for reasons stated in writing, allow expenses on a higher scale than that hereinbefore prescribed. (22.5.1915). 23. In cases to which Government is a party, Government servants whose salary exceeds.- Rs. 10 per mensem and all police constables whatever their salary may be who are summoned to give evidence in their official capacity at a Court situated more than five miles from their headquarters, shall be given a certificate of attendance by the Court in lieu of travelling and other expenses.” (7.2.1920). Andhra Pradesh. Assam, Calcutta, Kerala, Madras and Mysore.- Substitute the following— ‘(i) when any party to a suit is required by any other party thereto to give evidence or to produce a document the provisions as to witness shall apply to him so far as applicable. (ii) when any party to a Suit gives evidence on his own behalf the Court may, in its discretion permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing. Order 16A Rule 1. Definitions

In this order—
(a) ‘detained includes detained under any law providing for preventive detention; (b) ‘prison includes—
(I) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail; and (ii) any reformatory, borstal institution or other institution of a like nature. Order 16A Rule 2. Power to require attendance of prisoners to give evidence. Where ft appears to a court that the evidence of a person confined or detained in a prison within the State is material in a suit, the court may make an Order requiring the officer in charge of the prison to produce that person before the court to give evidence: Provided that, if the distance from the prison to the court house is more than twenty five kilometers, no such Order shall be made unless the court is satisfied that the examination of such person on commission will not be adequate.

Order 16A Rule 3. Expenses to be paid into court. (1) Before making any Order under rule 2, the court shall require the party at ‘hose instance or for whose benefit the Order is to be issued, to pay into court such sum of money as appears to the court to be sufficient to defray the expenses of the execution of the order, including the travelling and other expenses of the escort provided for the witness. (2) Where the court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made by the High Court in that behalf.

Order 16A Rule 4. Power of state government to exclude certain persons from the operation of rule 2. (1) The State government may, at anytime, having regard to the matters specified in sub-rule (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the Order remains in force, on Order made under rule 2, whether before or after the date of the Order made by the State Government, shall have effect in respect of such person or class of persons. (2) Before making an Order under sub-rule (1), the State government shall have regard to the following matters, namely:— (a) the nature of the offence for which, or the grounds on which, the person or class of persons have been ordered to be confined or detained in prison; (b) the likelihood of the disturbance of public Order if the person or class of persons is allowed to be removed from the prison; and (c) the public interest, generally.

Order 16A Rule 5. Officer in charge of prison to abstain from carryon out Order in certain cases. Where the person in respect of whom an Order is made under rule 2— (a) is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity; or (b) Is under committal for trial or under remand pending trial or pending a preliminary investigation; or (c) is in custody for a period which would expire before the expiration of the time required for complying with the Order and for taking him back to the prison in which he is confined or detained; or (d) is a person to whom an Order made by the State government under rule 4 applies, the officer in charge of the prison shall abstain from carrying out the courts Order and shall send to the court a statement of reasons for so abstaining. Order 16A Rule 6. Prisoner to be brought to court in custody.

In any other case, the officer in charge of the prison shall, upon delivery of the court’s order, cause the person named therein to be taken to the court so as to be present at the time mentioned in such order, and shall cause him to be kept in custody in or near the court until he has been examined or until the court authorises him to be taken back to the prison in which he is confined or detained.

Order 16A Rule 7. Power to issue commission for examination of witness in prison. (1) Where it appears to the court that the evidence of a person confined or detained in a prison, whether within the State or elsewhere in India, is material in a suit but the attendance of such person cannot be secured under the preceding provisions of this order, the court may issue a commission for the examination of that person in the prison in which he is confined or detained. (2) The provisions of Order XXVI shall, so far as may be, apply in relation to the examination on commission of such person in prison as they apply in relation to the examination on commission of any other person.

CIVIL PROCEDURE CODE, Order 16 Rule 14 of the Code of Civil Procedure empowers the Court to summon on its own any person to give evidence or to produce any document in his possession if the Court is satisfied that the evidence of such witness is necessary to arrive at a just conclusion. The petitioner wanted the trial Court to examine the Chief Executive Officer of Kadapa Zilla Parishad as a witness, with reference to the records maintained by Zilla Parishad pertaining to the suit schedule property. He invoked Rules 6, 7 and 14 of Order 16 C.P.C. The trial Court rejected the application on the ground that it cannot be compelled to examine a person as a Court witness, and it is always for the Court itself to take such steps, on its own accord. In fact, Rule 14 prior to amendment by the Amendment Act 1976, Court had power to summon as witnesses any person other than a party to the suit who had not been called as a witness by any party either to give evidence or to produce document. The Rule did not confer any express power on the Court to summon a party to the suit as a witness. But after the Amendment, 1976, the Court has been given express power to summon a party to the suit.

Even if a party voluntarily appears in the witness-box to give evidence in his own favour and deliberately keeps himself away after examination-in-chief and before cross examination, the Court cannot exercise its power under the amended Rule also.” From the above discussion, what emerges is that, the power under Rule 14 of Order 16 C.P.C., is to be exercised by a Court, on its own accord, and not on the insistence by a party to the suit. Though a party to the suit can place any information, which may impress upon or convince the Court to exercise its powers under that provision, an independent application for that very purpose does not lie. If parties are permitted to make independent application for summoning of an individual as a Court witness and are conferred with the right to insist the Court to accede their request, it may lead to several complications. It can be used as a device to overcome their inability or failure to summon a witness, and in certain cases, to  fill up the lacuna in the evidence, which is already on record.

That was never the intention of the Parliament. If a party wants a particular individual be summoned or examined as witness, it must have recourse to Rules 1 and 1-A of Order 16 C.P.C. ORDERS OF VARIOUS COURTS The petitioner filed O.S.No.1198 of 2006 in the Court of the IV Additional Junior Civil Judge, Kadapa against respondent No.1 herein for the relief of declaration of title and perpetual injunction in respect of the suit schedule property. Thereafter, respondent No.1 got herself impleaded and made claim vis-vis the suit schedule property. Issues were framed and the trial of the suit commenced. During the course of her evidence, respondent No.2 stated that the suit schedule property has accrued to her husband by way of exchange with Kadapa Zilla Parishad. In a way, she has projected independent title in respect of the property. The petitioner filed I.A.No.648 of 2010 under Rules 6, 7 and 14 of Order 16 C.P.C. with a prayer to summon the Chief Executive Officer of Kadapa Zilla Parishad as a witness to produce the records and documents mentioned therein and to speak about them. The application was opposed by the respondents. Through order, dated 22.09.2010, the trial Court dismissed the I.A. It was observed that Rule 14 of Order 16 C.P.C. does not confer right upon a party to require the Court to summon or examine a person as a Court witness. The same is challenged in this revision.

Sri V.R.Reddy Kovvuri, learned counsel for the petitioner, submits that though Rules 6 and 7 of Order 16 C.P.C. may not strictly apply to the facts of the case, it was competent, if not, obligatory for the trial Court to summon a witness on an application made by a party to the suit, in case, the necessity to summon the witness is established. He contends that once respondent No.2 has stated that the suit schedule property stood transferred in favour of her husband on an exchange by Kadapa Zilla Parishad, verification of records maintained by it and the examination of the witnesses become necessary. Placing reliance upon the judgments rendered by this Court in Kosuru Kalinga Maharaju Vs. Kosuru Kaikamma1 and Veesam Mohan Reddy Vs. Rebba Pedda Agaiah, the learned counsel submits that the view taken by the trial Court cannot be sustained in law. The petitioner wanted the trial Court to examine the Chief Executive Officer of Kadapa Zilla Parishad as a witness, with reference to the records maintained by Zilla Parishad pertaining to the suit schedule property. He invoked Rules 6, 7 and 14 of Order 16 C.P.C. The trial Court rejected the application on the ground that it cannot be compelled to examine a person as a Court witness, and it is always for the Court itself to take such steps, on its own accord.

Order 16 C.P.C. deals with the summoning and attendance of witnesses. Rule 1 thereof mandates that the parties shall submit a list of witnesses, whom they propose to examine, to give evidence or to produce documents, within 15 days from the date on which the issues are settled. In case a party is of the view that it cannot procure the presence of a witness, whom he intends to examine, he can file an application for obtaining summons for ensuring attendance of such witness. Sub-rule (3) enables the Court to permit a party to call a witness, though his name does not appear in the list of witnesses mentioned in sub-rule (1), provided sufficient cause for omission is shown. Rule 1-A was added through amendment of the year 1976, enabling the parties to examine a witness without applying for summons under Rule 1. This, in brief, is the facility created for the parties to the suit in the matter of examining the witnesses. Rule 6 of Order 16 C.P.C. enables a party to request the Court, to summon a person just to produce a document, without the necessity of any deposition. Rule 7 on the other hand empowers the Court to require a person, who is present in the Court, to give evidence or to produce documents, that are in his possession or power.

Though the petitioner invoked these two Rules, none of them are relevant for the prayer made by him, in the I.A. Rule 14 of Order 16 C.P.C., upon which emphasis is laid, reads as under: “14. Court may of its own accord summon as witnesses strangers to suit:- Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit and not called as a witness by a party to the suit, the Court may, of 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.” The heading of the Rule makes it amply clear that the power to summon strangers to a suit, as witness is to be exercised by the Court “on its own accord”. This idea is further strengthened by the phrases, “where the Court at any time thinks” and “the Court may, of its own motion”, occurring in the body of the provision. This is not an instance of the aid of heading being taken to expand or restrict the meaning of the provision.

In fact, both are at harmony, with each other. It is not uncommon that certain powers which are conferred upon the Court to take a particular step either by itself or at the instance of the parties to the proceedings. In such cases, the provisions itself would be clear; Section 152 C.P.C. can be taken as an example in this regard. It reads as under: “152. Amendment of judgments, decrees or orders: Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.” Exercise of power by the Court on its own accord as well as, at the instance of parties would also be possible where, the language of the provision is not so clear on this aspect. For instance, Rule 11 of Order 7 C.P.C., which provides for rejection of plaint, contains a phrase “the plaint shall be rejected in the following cases”. Though it is not mentioned as to whether it is the exclusive prerogative of the Court to exercise such power, or whether it can be exercised at the instance of the parties; in practice, it is both. Much, therefore, would depend upon the text of the provision. Rule 14 of Order 16 C.P.C., permits of no doubt, as to its purport. It confers exclusive power upon the Court.

The power can be exercised only when the Court feels to do so, irrespective of the stance, which the parties may take on the matter. Way back in 1936, the Privy Council, in Nazir Ahmad v. King Emperor explained as to provisions of law must be understood. It was with reference to Section 164 of Cr.P.C., as it then stood, in the context of the discretion of the Court, to record a confession. Their Lordships held, ‘Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognized rule, viz., that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden’. This was quoted with approval in Ballabhdas Agarwal v. J.C. Chakravarty, and the gist of it was mentioned in Gujarat Electricity Board v. Girdharlal Motilal, as under: “The Legislature has prescribed a mode for exercising of that power and hence that power can be exercised only in that manner and in no other manner.” The observations of the Privy Council and the Supreme Court are very much relevant in understanding the scope of Rule 6 of Order 16 C.P.C.

To be precise, the Court must feel that notwithstanding the fact that the parties have adduced evidence, there are certain aspects which become necessary for effective adjudication of the dispute. It may be for the purpose of satisfying itself as to the legality of the claim even where the parties did not bestow the attention, or in relation to the facts, that have a bearing upon its very jurisdiction. The reason is that if the cause before the Court is such that it lacks the jurisdiction to adjudicate it, and the defendant in the suit or for that matter, the plaintiff did not bestow their attention to it, the very act of entertaining the suit; may become untenable. For this purpose, the court may choose to examine any person other than the witnesses that are already examined and enlighten itself, on some of the important aspects. This is only an example. The question of a party invoking such a power, which is to be exercised by the Court on its own accord, does not arise. It now, needs, to be seen as to how this provision, was either interpreted or understood, over the years.

In P.S. Chetty v. K.E. Reddy, this Court held: “Order 16 Rule 14 CPC provides that the court may of its own initiative or suo motu cause any person to be examined as a witness though either of the parties did not choose to take steps for summoning such person as a witness. This power obviously intended in the interest of justice is aimed at clarifying certain situations and remove ambiguities and fill up lacuna and thereby further justice. The parties may refrain from summoning a crucial witness in the event of their apprehension of full fledged support and in such a situation the court may summon such person to give evidence to arrive at the correct factual picture and this witness is called a ‘court witness’. Order 16 Rule 14 visualises the initiative by the court only to examine any person and it is for the court to consider of its own accord the necessity of invoking power under this rule without propulsion or application by the parties. The exercise of this power is in the nature of “self-starter” without extraneous pressure or pull.” Having said this, the High Court proceeded to observe that the Court is not obliged to invoke the power under that provision at the instance of the parties.

However, a rider was added to the effect that an application filed by the parties invoking such a provision can be treated as a device of passing on the information, which may help the Court in forming an opinion, whether or not to exercise its power under Rule 14 of Order 16 C.P.C. The relevant portion reads: “It is true that the court is not obligated to invoke the power at the instance of the parties and the parties have no right to move an application under this rule. But however either of the parties can bring to the notice of the court the necessity for examining any person as court witness. On such application the court may scan the totality of facts and circumstances apart from the situations projected by the parties and arrive at an independent conclusion as to the necessity of a court witness. The parties are not totally barred from bringing to the notice of the court by application or otherwise and the court is not bound to take action on the averments or allegations contained in the application and it is the sole discretion of the court.

The application by the parties may be considered as passing on the information so that the court may examine the issue indepth on the facts and circumstances set out in the application and other aspects.” However, in subsequent judgments, this precedent was understood, as though the parties to the suit can insist on examination of an individual as a Court witness, under Order 16 of Rule 14 C.P.C. The judgment in Kosuru Kalinga Maharaju’s case is one such. It was observed; “A reading of the above provision would leave no doubt in the mind to say that either party to the suit proceedings can summon person including a party to the suit who is not called as a witness by a party to the suit, as a witness. Legislature has felt the need for a direct provision enabling the court to summon a party for giving evidence as a witness to help curbing the malpractice of a party not appearing as a witness and forcing the other party to call him as a witness, and adjudicate the issues properly. What is laid down in the above provision is that if the Court is satisfied about such a necessity to cause any person to be examined as a witness, Court can summon such person as a witness. The emphasis is laid on the subjective satisfaction of the Court. However, this power is to be exercised by the Courts guardedly and not as a matter of routine.”

Similarly, in Vessam Mohan Reddy’s case, though no reference was made to the judgment in P. Subrahmanyam Chetty’s case, or any other precedent, the following observation was made: “As could be seen, Order 16 Rule 14 of the Code of Civil Procedure empowers the Court to summon on its own any person to give evidence or to produce any document in his possession if the Court is satisfied that the evidence of such witness is necessary to arrive at a just conclusion. The said power includes to summon even a party to the proceeding. Though the language of Rule 14 shows that such discretion has to be exercised by the court at its own motion, the law is well-settled that such a power can be exercised even on an application made by a party to the proceedings, since the application if any, can be taken as an information to the Court.” It is apt to refer to the judgment of the Privy Council in Agha Mir Ahmad v. Mudassir Shaw. In that case, which arose out of a suit for declaration, the plaintiff invoked the jurisdiction of the trial Court, under Order 16 Rule 14 C.P.C., to summon a witness was omitted during the trial.

That application was filed after both the parties closed their evidence. The trial Court rejected the application with the following observation: “I have considered this question carefully and am of opinion that it would be seriously detrimental to the defendants’ case to admit this  witness at this stage. I do not consider that it is the duty of the Court to remedy an omission by a party to the suit which may be intentional or if not, must be due to neglect.” One of the grounds urged in the appeal before the Privy Council was, as to the correctness of the observation made by the trial Court, on the purport of Rule 14 of Order 16 C.P.C. Their Lordships of the Privy Council held; ‘In the circumstances the Courts below were right in not acceding to the request of the appellants to examine Mt.Faruq, whether their omission to examine her was intentional or due to neglect. The power of the Court under O.16, R.14, Civil P.C., to examine witnesses on its own motion is discretionary.”

In Varadharajan v. Saravanan8, the Madras High Court has this to say about Rule 14 of Order 16 C.P.C. “Para-7: Even in this rule, the power of the Court to examine the witnesses on his own motion, is discretionary. Ordinarily it is for the party to summon the witnesses necessary for his case and when the party has done everything in that regard, it is the duty of the Court to enforce their attendance. Only when it appears to the Court that the evidence of a particular witness is necessary for the proper adjudication of the suit, then only the Court may secure suo motu the attendance of such witness. This discretionary power under this Rule should not be used to help a party to tide over a real difficulty in examining that witness. When neither side has summoned the material witness to give evidence, the Curt is justified in refusing to call him as a Court witness after closure of evidence.

Para-8: In fact, Rule 14 prior to amendment by the Amendment Act 1976, Court had power to summon as witnesses any person other than a party to the suit who had not been called as a witness by any party either to give evidence or to produce document. The Rule did not confer any express power on the Court to summon a party to the suit as a witness. But after the Amendment, 1976, the Court has been given express power to summon a party to the suit. Even if a party voluntarily appears in the witness-box to give evidence in his own favour and deliberately keeps himself away after examination-in-chief and before cross examination, the Court cannot exercise its power under the amended Rule also.” From the above discussion, what emerges is that, the power under Rule 14 of Order 16 C.P.C., is to be exercised by a Court, on its own accord, and not on the insistence by a party to the suit.

Though a party to the suit can place any information, which may impress upon or convince the Court to exercise its powers under that provision, an independent application for that very purpose does not lie. If parties are permitted to make independent application for summoning of an individual as a Court witness and are conferred with the right to insist the Court to accede their request, it may lead to several complications. It can be used as a device to overcome their inability or failure to summon a witness, and in certain cases, to fill up the lacuna in the evidence, which is already on record. That was never the intention of the Parliament. If a party wants a particular individual be summoned or examined as witness, it must have recourse to Rules 1 and 1-A of Order 16 C.P.C.

BIBLIOGRAPHY

http://www.lawzonline.com/bareacts/civil-procedure-code/orderXVI-code-of-civil-procedure.htm

http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_XU7A6U42.PDF

http://www.lawzonline.com/bareacts/civil-procedure-code/orderXVIA-code-of-civil-procedure.htm

http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/orderXVI.php?Title=Code%20of%20Civil%20Procedure,%201908&STitle=Summoning%20And%20Attendance%20Of%20Witnesses