1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 504 OF 2010 Shri Harishchandra Shivram Dhamdhere & Anr. .. Petitioners Vs Shri Prabhakar Shivram Dhamdhere. .. Respondent -- Shri J. Shekhar i/by J. Shekhar & Co. for the Petitioners. Shri Vilas B. Tapkir for Respondent. -- CORAM : A.S.OKA, J. DATE : 4TH MARCH, 2010 P.C: . Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent. At the instance of the Petitioners (who are the Defendants ), witness summons was issued to two witnesses. According to the case of the Petitioners, notwithstanding the service of summons, the witnesses did not appear. Therefore, an application was made for issuing warrant to the said witnesses. The said application was rejected by observing that there is no proper service of witness summons. An application for review made by the Petitioners was rejected. The learned counsel appearing for the Petitioners has invited my attention to the reports of the Bailiff and submitted that the view taken by the Court below is erroneous. The learned counsel appearing for the 2 Respondent pointed out the reports of the Bailiff and submitted that there was no proper service of summons. 2. I have considered the submissions. The report dated 21st September, 2009 records that the premises of the witnesses were locked. Therefore, the summons was returned unserved. The report dated 31st August, 2009 records that time and again the Bailiff visited the shop premises of the witnesses. It is recorded in the said report that the employee working therein stated that the concerned witness is normally at Pune and on some occasions, he visits the shop premises. On 3rd October, 2009, the persons were not found in the shop premises. The Bailiff has reportedly visited the premises of the witnesses, but either the witnesses were not available or the premises were locked. 3. Considering the reports of the Bailiff, this is a fit case where instead of issuing warrant, the Trial Court ought to have exercised power under Sub-rule (2) of Rule 10 of Order XVI of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ) by issuing proclamation. If attendance of the witnesses cannot be procured by way of proclamation, the Court thereafter can always take further steps. 4. Hence, the Petition is disposed of by passing the following order. 3 (a) The impugned order dated 19th November, 2009 is quashed and set aside. The Trial Court is directed to issue proclamation under Sub-rule (2) of Rule 10 of Order XVI of the said Code. (b) If the presence of the witnesses cannot be procured by the proclamation, it is always open for the Petitioners to apply for taking action in accordance with Sub-rule (3) of Rule 10 of Order XVI of the said Code. (c) The Petition is partly allowed in above terms. (A.S.OKA, J)