HIGH COURT OF JAMMU AND KASHMIR AT JAMMU C. Rev. No. 140/2007 CMP No. 149/2007 Date of decision: 04.02.2009 ______________________________________________________ I-Up Bottling Company Vs. Bank of India Coram: MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For the Petitioner(s) : Mr. Anil Sethi, Advocate. For the Respondent(s) : Mr. C. L. Razdan, Advocate. i) Whether approved for reporting in Press/Journal/Media : Yes ii) Whether to be reported in Digest/Journal : Yes __________________ _____________________________________ _ The Bank of India had filed a suit for recovery of Rs. 54,32,677.01 in this Court more than twenty years ago. This suit was later transferred to the Court of Additional District Judge (Bank Cases) Jammu, for its disposal. Taking note of earlier interim orders passed during the currency of the suit, the trial Court, vide its order of August 10, 2007, had allowed opportunity to the petitioner- defendant to deposit Rs. 10,000/- as diet money for its out-station witnesses appearing at serial nos. 5 to 10, 14, 20 and 21 of the list of witnesses, and Rs. 1500/- each for rest of its witnesses who had to come from Jammu. 2 Petitioner-defendant did not comply with this order as a result whereof the petitioner’s right to summon its witnesses through the process of the Court was closed. The petitioner was, however, permitted to produce its witnesses on its own. Questioning the trial Court’s orders dated August 10, 2007 and September 10, 2007, petitioner’s counsel submits that as the trial Court had earlier accepted Rs. 100/- as diet money of the ex-station witnesses, its order of August 10, 2007 was not justified, because no provision of the Code of Civil Procedure may permit such a course. He submits that order passed by the trial Court on September 10, 2007, closing petitioner’s right to summon its witnesses through Court process, too, for the similar reasons, was liable to be set aside. Learned counsel for the Bank, on the other hand, has justified the trial Court’s orders, urging that ex-station witnesses, particularly those enjoying the status of Chairman and Zonal Officer of Scheduled Banks, cannot be compelled to appear in the Court unless the petitioner had deposited in the Court the actual expenses which these witnesses would have to defray to reach the Court house and spend for their stay at Jammu. I have considered the submissions of learned counsel for the parties. Before dealing with the submissions made by learned counsel for the parties it would be profitable to refer to what had weighed with 3 the trial Court to direct the petitioner to deposit Rs. 10,000/- each for out-station witnesses, holding the status of Chairman and Zonal Officer of the Bank. This order reads thus:- “In order to succeed in their ulterior motive to protract the litigation the defendants further submitted a long list of 21 witnesses without stating any specific purpose for which they are called i.e. as to what they have to depose and as to what they have to prove from the witness and their diet expenses have been fixed at Rs. 100/- each though the witnesses have to be summoned from Mumbai, New Delhi, Chandigarh and Gaziabad (UP) respectively. If a witness that too of a status of Chairman of a Bank or the Zonal Officers of the Bank who have to come from outside the State it will take at least three days for them to appear in this Court and that too if they travel by air. As such the to and fro air fair will not cost them less than Rs. 10,000/- each only, for travel even if no diet expenses are defrayed to them for the minimum three days they have to spend as appearing as a witness. The present application has simply been filed by the defendants so that the litigation does come to a logical conclusion and in my view, if such a practice is not curbed or discouraged then their will no end to the present litigation and it will take another two decades to see that the light of the day. Viewed thus, it is directed that in case the defendants are still seriously interested to get the witnesses mentioned in the list of witnesses to be summoned by this Court they shall deposit Rs. 10,000/- (Rupees Ten Thousand only) each for the rest of the witnesses who have to come from Jammu on or before the next date fixed positively with a specific purpose for which the witness is proposed to be produced and with a further condition that they shall defray the diet expenses if found still insufficient at the time of their examination, failing which the defendants shall produce the said witnesses at their own on the next date fixed.” 4 I have considered the provisions of Order 16 Rule 2 of the Code of Civil Procedure in terms whereof the Court is empowered to require a party desirous of seeking summons to secure the presence of its witnesses, to pay into the Court such sum as may appear to the Court to be sufficient to defray the travelling and other expenses of the persons so summoned, in coming to and from the Court, in which they were required to attend. In the event of a Court’s finding that the amount deposited by the party, desirous of securing the presence of the witnesses through Court process, was not sufficient, resort may be made by the Court to the provisions of Order 16 Rule 4 of the Code of Civil Procedure to direct such party to deposit such expenses or reasonable remuneration, which, according to Court would be necessary to defray the travelling expenses of the witnesses. Order 16 Rule 4 of the Code of Civil Procedure, for facility of reference, is reproduced hereunder:- “ 4. Procedure where insufficient sum paid in (1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the moveable property of the party obtaining the summons, or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. Expenses of witnesses detained more than one day: (2) Where it is necessary to detain the person summoned for longer period than one day, the Court 5 may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as it sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the moveable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.” Power under Order 16 Rule 4 of the Code may be exercised by the Court even before issuance of summons to the witness, for there is no disabling provision in the Code which may require making up of such deficiency only when the witness appears in the Court. This is so because summons for appearance of a witness in civil cases and for his stay for more than one day, may be issued by the Court only when it is satisfied that the sum deposited by the party desirous of summoning the witness was sufficient to defray the travel and other expenses of the person summoned and for his comfortable stay for the period he is so required to appear in the Court. I therefore do not find substance in Mr. Anil Sethi’s submission that the trial Court should have first issued summons to the ex-station witnesses on the meager amount of Rs. 100/- which had been earlier deposited by the petitioner-defendant to secure the presence of persons enjoying the status of Chairman and Zonal Officer of a Scheduled Bank, and thereafter called upon the petitioner-defendant to deposit more money in case it was so demanded by the witnesses. This is so because a person enjoying a higher status and used to a 6 better life style because of the nature of his job, cannot be compelled to travel by spending on his own or on account of his employer or on amount which may be insufficient to defray his travel and other expenses to which he may be entitled under rules. I, therefore, do not find any irregularity or illegality in the order of the trial Court, directing the petitioner to deposit Rs. 10,000/- for each ex-station witness and Rs. 1500/- for the witnesses who had to come from Jammu. As the petitioner had failed to comply with order of August 10, 2007, so the resultant order passed by the trial Court, refusing to summon the witnesses but permitting the petitioner to produce its witnesses on its own, too cannot be faulted. For all what has been said above I do not find any merit in this revision petition, which is, accordingly, dismissed. (J. P. Singh) Judge Jammu February 4, 2009 Anil Raina, Secy.