HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 316 of 2006 (MS) Raj Kumar s/o Sri Sai Das Dhukandar Haweli Santal Sarai Gau Ghat, Haridwar …….... Petitioner Versus 1. Additional Civil Judge, Haridwar. 2. Saidas s/o Sri Kishan Chandra R/o Arora Bhawan Opposite Kali Mandir Bheemgoda Haridwar. 3. Smt. Dayawanti w/o Sri Dayal Das r/o Arora Bhawan Bheemgoda Haridwar 4. Dheeraj Kumar s/o Sri Sai Das r/o Arora Bhawan, Bheemgoda, Haridwar ……. Respondents Sri Lalit Tiwari, Advocate for the petitioner. Standing Counsel for the respondents. Dated: 5.4.2006 Hon’ble Rajesh Tandon, J. Heard Sri Lalit Tiwari counsel for the petitioner and Standing counsel for the respondents. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the orders dated 18.1.2006 and 21.21.2006 passed by the respondent no. 2. Briefly stated the respondent no. 2 filed a suit in the Court of Civil Judge (J.D.) Haridwar against the petitioner/defendant retraining him from running the business in the disputed property being O.S. No. 254 of 1995. The petitioner filed a written statement. He also filed a copy of the Rent deed executed between the petitioner and the landlord. On the application of the petitioner, the trial Court 2 summoned one Raman Kumar in whose favour power of attorney was executed in the said agreement dated 9.4.1994. Sri Raman Kumar could not be served by summons and the trial Court vide order dated 18.1.2006 closed the defence of the petitioner. The petitioner has submitted that said Raman Kumar is an important witness of defence and his evidence is necessary in order to adjudicate the dispute. Order XVI Rule 10(2) (3) of the Code of Civil Procedure provides the procedure where witness fails to comply with summons. These rules reads as under: (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 or 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 to 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: 3 A reading of aforesaid provision shows that the Civil Court has ample power to procure attendance of a witness whose evidence is necessary and material in proper adjudication of a case. In the present case the trial court without taking recourse of respective provision of law, merely strike off the defence of the petitioner on the ground that the case is pending since 1995. Thus the order passed by the trial court is liable to be set aside. In view of above, a writ of certiorari is issued quashing the Order dated 18.1.2006 passed by the Civil Judge (J.D.) Haridwar. The case is remanded to the trial Court for deciding the case after giving opportunity to the defendant to adduce proper evidence. Accordingly, writ petition is allowed. No order as to costs. Dated: 5.4.2006 Rajesh Tandon, J. *Dhyani