THE HON'BLE MR JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No:1255 of 2009 ORDER: This Civil Revision Petition is directed against the order, dated 11.02.2009, in I.A.No.766 of 2008 in O.S.No.4 of 2002 on the file of the learned Senior Civil Judge, Chittoor, wherein the said application filed by the petitioner herein under order XVI Rule 10 (2) CPC, seeking issuance of warrant against the 2nd respondent herein for his appearance before the Court to give evidence, was dismissed. 2. Heard learned counsel for the petitioner and the learned counsel for the 1st respondent. None appeared for the 2nd respondent though served with notice. Perused the records. 3. 1st respondent herein filed the suit for declaration of title and for permanent injunction against the 2nd respondent-1st defendant and the petitioner-2nd defendant. 1st defendant remained ex parte in the suit. During the course of trial, the petitioner-2nd defendant filed I.A.No.444 of 2008 under Order XVI Rule 14 CPC, seeking issuance of summons to the 1st defendant to appear before the Court and give evidence. The said application was also filed on 25.06.2008 and summons were issued to the 1st defendant. It is stated that the said summons were served on the 1st defendant by post. Admittedly, he did not appear before the Court as on the date fixed for his appearance to give evidence. Hence, petitioner-2nd defendant filed I.A.No.766 of 2008 under Order XVI Rule 10 (2) CPC seeking issuance of warrant of arrest against the 1st defendant before the Court. Even in the said application also, 2nd respondent herein-1st defendant remained ex parte. 1st respondent herein- plaintiff opposed the said application stating that the witness was residing 300 kms away from that place. The learned Senior Civil Judge by order, dated 11.02.2009, dismissed the application on the premise that the 1st defendant even if he appears before the Court may give evidence in support of the 2nd defendant and therefore his evidence would be unnecessary. The trial Court also observed that this Court directed early disposal of the suit and time was extended from time to time and it was last extended by three months in C.M.P.No.7053 of 2008 and therefore it does not brook any further delay. 4. When once the 1st defendant has received the summons for his appearance before the Court to give evidence, he is bound to appear before the Court and give evidence. It is not for the plaintiff to plead on behalf of the 1st defendant about any excuse for his non- appearance on the ground of distance or otherwise. Secondly, it is also not proper on the part of the Court to presume what the witness is going to depose the evidence and whether such evidence would be in support of the plaintiff or the 1st defendant, even before the witness has appeared and given evidence. Having allowed I.A.No.444 of 2008 and issued summons for the appearance of the 1st defendant, the Court ought to have enforced the attendance of the 1st defendant by resorting to coercive steps as the order passed by the Court earlier directing appearance of the party or witness cannot be allowed to be flouted with impunity. Dismissal of the application on the ground that the witness may not support the second defendant is therefore wholly untenable. The trial Court has not considered the matter, in the light of the provisions of Order XVI Rule 10 (2) CPC, which enables the Court to take coercive steps against the person, who has received the summons and without any lawful excuse failed to attend the Court. As the 1st defendant has flouted the orders of the Court and failed to respond to the summons issued by the Court, which are duly served, the Court ought to have issued a proclamation as contemplated under sub-Rule (2) and in its discretion it is open to the Court to issue a warrant of arrest against the 1st defendant to enforce his appearance before the Court in lieu of or at the time of issuing such proclamation as contemplated under sub-Rule (3) of Rule 10 CPC. The impugned order is therefore held unsustainable and the same is accordingly set aside. The trial Court is directed to consider the matter afresh in the light of Order XVI Rule 10 (2) and (3) CPC and pass appropriate orders. 5. In the result, Civil Revision Petition is allowed as stated above. ______________________ G.V.SEETHAPATHY,J 24th October, 2011. Tsy