IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 7714 of 2009 Between: Vundavalli Ramakrishna Rao, S/o. Late Subba Rao, Senior Civil Judge's Court, Nazarath Section, Bhimavaram, East Godavari District. ..... PETITIONER AND The First Additional Junior Civil Judge, Bhimavaram, East Godavari District. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent passing impugned orders in EA NO. 263/2008 in EP No. 73/2007 in OS No. 493/2004 including imposition of fine of Rs. 200/- to the extent of orders infringe or adverse to the interest of the petitioner, are illegal, arbitrary and unconstitutional, and consequently set aside the orders passed in EA No. 263/2008 in EP No. 73/2007 in OS No. 493/2004 to the extent of orders infringe or adverse to the interest of the petitioner and order for refund of fine of Rs. 200/- and pass Counsel for the Petitioner: MR.N.RAVI PRASAD Counsel for the Respondent No.: . The Court made the following : ORDER : (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed assailing the action of the respondent in passing the impugned orders dated 24.2.2009 in E.A.No. 263 of 2008 in E.P.No. 73/2007 in O.S.No. 493 of 2004 including imposition of fine of Rs. 200/- to the extent the orders infringe or adverse to the interest of the petitioner as illegal, arbitrary and unconstitutional and consequently to set aside the orders dated 24.2.2009. Brief facts of the case are that the petitioner is working as Amin, in the Court of Senior Civil Judge, Bhimavaram. He has been entrusted with a delivery warrant in relation to immovable property in pursuance of a sale certificate given by the Court, in E.P.No. 73 of 2007 on the file of 1st Additional Junior Civil Jduge, Bhimavaram. It is stated that he has gone to the concerned village and delivered the schedule property on 14.6.2008 to the auction purchaser as per the procedure prescribed under law. On 21.2.2009 one D. Ravindra Reddy, process Server in the Courts at Bhimavaram, came to serve witness summons in E.A.No. 317 of 2008, he refused the same saying that the summons should be served through the Court. Subsequently, another process server Sri K. V. Sambasiva Rao came and served witness summons on 2.3.2009 processed through proper channel for his appearance before the Court on 3.3.2009 to give his evidence. It is stated that at about 12 noon the Presiding Officer did not record his evidence but instead informed him that an arrest warrant was issued against him on the ground that he refused to receive summons sought to be served through D. Ravindra Reddy, Process Server and therefore, his evidence cannot be recorded. Subsequently, he came to know that the Court recorded the statement of the process server D. Ravindra Reddy inspite of the endorsement made by him on the reverse of the summons. In fact, the said D. Ravindra Reddy only mentioned on the return endorsement that summons has to be received and served through proper channel viz., routed through the Senior Civil Judge under whom the process establishment is functioning. Basing on the said endorsement, the learned Judge issued arrest warrant against the petitioner purportedly under Order XVI Rule 10(3) CPC and in the same order he directed the petitioner to pay a fine of Rs. 200/-, which reads as under: “Heard the petitioner counsel. The Bailief/Amin is present. And he is examined by the Court and he is cross examined by Auction Purchaser, J.Dr and D.Hr and he is cross examined partly by the claimant counsel. The bailief paid the fine amount of Rs. 200/-. In view of the above fact, this court opines that it is just to release the bailief on his execution of a bond giving undertaking to attend to this court whenever his appearance is necessary to give evidence. Accordingly this petition is disposed of.” The learned counsel appearing for the petitioner contended that the summons were not refused as contemplated under Order 16, Rule 10 of Code of Civil Procedure and that proclamation issued under sub- rule (2) of Rule 10 of CPC is not a warrant. He further contended that these are the matters, which the petitioner should establish by making appropriate application under Rule 11 of CPC by explaining the circumstances under which the summons could not be received. Heard the learned counsel appearing for the petitioner and we have perused the order under challenge. Order 16 Rules 10,11 and 12 of Code of Civil Procedure reads as under: “10. Procedure where witness fails to comply with summons: () where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court- (a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.) (2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend on to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. (3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12: Provided that no Court of Small Causes shall make an order for the attachment of immovable property. 11. If witness appears attachment may be withdrawn- Where, at any time after the attachment of his property, such person appears and satisfies the Court, - (a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and (b) where he has failed to attend at the time and place named in a proclamation issued under the last preceding rule, that he had no notice of such proclamation in time to attend, the Court shall direct that the property be released from attachment and shall make such order as to the costs of the attachment as it thinks fit. 12. Procedure if witness fails to appear- (1) The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold or, if already attached under Rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any; Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment. (2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of Rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.” The above provisions provide complete procedure to be adopted and apart from that, the petitioner is also provided with an alternative remedy under Rule 11 of CPC. Therefore we are not inclined to exercise our writ jurisdiction under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. Liberty is given to the petitioner to make an application before the concerned Judge under Order 16 Rule 11 of CPC. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ VILAS V. AFZULPURKAR , J Dt. 08.06.2009 KA // TRUE COPY // ..... REGISTRAR SECTION OFFICER To 1) 2 CD copies