IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 27112-CII of 2009 in Civil Revision No.4948 of 2008 Date of Decision : November 19, 2009 Darshan Singh ....Petitioner Versus Gurcharan Singh ....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.S. Ghangas, Advocate Mr. Wazir Singh, Advocate for Mr. Harkesh Manuja, Advocate T.P.S. MANN, J. (Oral) Prayer has been made by the petitioner for recalling/ modifying the order dated 16.12.2008 passed by this Court while disposing of Civil Revision No.4948 of 2008. Vide the aforementioned order, the plaintiff-petitioner was granted one last opportunity to examine his remaining evidence at his own risk and responsibility, subject to payment of Rs.10,000/- as costs. Learned counsel for the petitioner submits that pursuant to the aforementioned order, the petitioner paid the costs of Rs.10,000/- to the defendant on 13.1.2009 and applied for issuance of summons for the service of the witnesses, i.e. Satnam Dass, Deed Writer and Rampal, Lambardar, who was the attesting witnesses, as the diet money and process fee had already been deposited. However, both these witnesses avoided service. The petitioner then moved an application before the learned trial Court to C.M. No. 27112-CII of 2009 in -2- Civil Revision No. 4948 of 2008 procure the presence of the above said witnesses by way of warrants of arrest. The said application was partly allowed on 11.2.2009 by issuing bailable warrants of Satnam Dass, Deed Writer. However, prayer made by the petitioner qua Rampal, Lambardar was declined. The order passed by the learned trial Court on 11.2.2009 was challenged by the petitioner by filing Civil Revision No. 1225 of 2009 but the same was dismissed on 9.10.2009 as having been withdrawn with liberty to file an application for review/modification/clarification of the order dated 16.12.2008. It is further submitted that though the petitioner had been granted one last opportunity on December 16, 2008 by this Court for examining his remaining evidence at his own risk and responsibility yet a duty was cast upon the learned trial Court to secure the presence of Rampal, Lambardar by issuing bailable warrants against him as he had intentionally avoided service of the Court summons. Prayer has, accordingly, been made for issuance of directions to the learned trial Court to secure the presence of Rampal Lambardar by taking coercive measures so that he may be present before the said Court for being examined by the plaintiff-petitioner as his witness. Learned counsel for the respondent has opposed the prayer by submitting that vide order dated December 16, 2008, this Court had granted one last opportunity to the plaintiff-petitioner to examine his remaining evidence and the responsibility was placed upon the petitioner to secure the presence of his witnesses. Therefore, the trial Court was justified in declining the prayer made by the plaintiff for securing the presence of Rampal, Lamberder by way of coercive measures. C.M. No. 27112-CII of 2009 in -3- Civil Revision No. 4948 of 2008 A perusal of the order dated 11.2.2009 passed by the trial Court would reveal that upon noticing the fact that Satnam Dass, Deed Writer had refused to accept the summons, the said Court issued bailable warrants for securing his presence. At the same time, it was found that Rampal, Lambardar had not been served as the summons issued to him had been received back unserved. Once the summons had been issued by the trial Court for securing the presence of Rampal, Lambardar, duty was cast upon it to take the matter to its logical end. In case, Rampal, Lambardar was not appearing, the trial Court ought to have secured his presence by taking recourse to coercive measures. Had the trial Court not issued the summons for securing the presence of Rampal and required the plaintiff to bring him to the Court on his own, it could have declined the prayer for taking recourse to coercive measures. Admittedly, summons were issued requiring the presence of Rampal in the Court for being examined by the plaintiff as his witness. Therefore, once Rampal stood summoned and he remained unserved, the trial Court ought to have entertained the prayer made by the plaintiff to secure the presence of Rampal by taking recourse to coercive measures. Resultantly, the application is disposed of by modifying the order dated December 16, 2008 and directing the learned trial Court to secure the presence of Rampal, Lambardar by taking recourse to coercive measures so that the petitioner may examine him as his witness. ( T.P.S. MANN ) November 19, 2009 JUDGE satish