Madhya Pradesh High Court
Krishna Gopal vs Smt.Rajesh Chaurasiya on 4 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:7796
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 4 th OF APRIL, 2025
WRIT PETITION No. 6157 of 2011
KRISHNA GOPAL
Versus
SMT.RAJESH CHAURASIYA AND OTHERS
Appearance:
Shri D.K.Agrawal - Advocate for the petitioner.
Shru N.K. Gupta - Senior Advocate with Shri Ashish Saraswat and
Shri H.K.Goyal- - Advocate for the respondent.
Shri Saket Sharma - Advocate for respondent.
ORDER
1. The present petition under Article 227 of the Constitution is directed
against the order dated 30.08.2011 passed by Third A.D.J. Guna in Civil Suit
No.2-A/2011 whereby an application under Order 16 Rule 1(3) of the CPC
preferred by the present petitioner/plaintiff for summoning through court
certain witnesses of the Will dated 13.09.1998 was rejected.
2. Learned counsel for the petitioner has submitted before this Court
that though one of the attesting witnesses as well as the notary public who
had attested the Will were present on some dates before the trial Court but on
one pretext or the other, by moving application under provisions of CPC the
matter got adjourned and thereafter the said plaintiff/witnesses refused to
appear before the Court. Thus to prove the very Will dated 13.09.1998 there
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presence were required, therefore, an application under Order 16 Rule 1 (3)
of CPC was moved for summoning those witnesses through court but learned
trial Court rejected the said application on some frivolous grounds which are
not sustainable, thus prayed for allowing of the present petition and directing
the learned trial Court for issuing the summons to the notary public namely
Rajendra Dayal Sharma, who had notarized the Will and Manoj Bhargava
and Deepak Singh the attesting witness to the Will to call them and adduce
their evidence.
3. To bolster his submissions, counsel for the petitioner has placed
reliance on the various proceedings of the learned trial Court and has
submitted that it was on behest of the present respondents/defendants that the
matter for number of times got adjourned though the said witnesses were
present before this Court.
4.Apart from the aforesaid proceedings, learned counsel for the
petitioner has also placed reliance in the matter of Gopal Das Renwal vs.
Smt. Deepika Jain, reported in 2010(1)MPLJ 594 and has argued that when a
party is able to demonstrate before the Court by assigning sufficient adequate
reasons for his inability to keep the witnesses present for their cross-
examination he can very well seek assistance of the court for summoning
those witnesses.
5.On the other hand, learned Senior Counsel appearing for the
respondents submitted that no illegality has been committed by the learned
trial Court in rejecting the application as the said witnesses whereof the
petitioner/plaintiff wanted to summon through court and prove the Will were
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not required by the learned trial Court to have call those witnesses by issuing
summons, since it is settled law that the plaintiff has to prove its own case
and he cannot rely upon weakness of the others and for that he is required to
make them present.
6.While referring to Order 16 Rule 7 A of CPC, it was argued that any
party can very well move an application under the aforesaid provision for
issuance of summons for attendance of any person to whom he wishes to call
and effect the service of such summons personally and if the
petitioner/plaintiff wants to call the said witnesses he can very well move the
application in the aforesaid provisions and the Court if deems fit, can issue
orders for effecting the service of summons personally through court. He
further submitted that the present petition has no sum and substance,
accordingly it be dismissed.
7.Heard counsel for the parties and perused the record.
8.The Division Bench of this Court in the matter of Gopal Das Renwal
(supra) in paragraph 13 has held as under:-
"13.A perusal of Order XVI, Rule 1(3) of Civil Procedure
Code demonstrates that when a party prays for sum-moning of a
witness to the Court, then he has to assign sufficient and adequate
reasons for seeking assistance of the Court for summoning the
witness and since the application preferred on behalf of the
plaintiff under Order XVI, Rule 1(3) of Civil Procedure Code
assigns adequate reasons, which are based upon the inability of the
plaintiff to keep the witness present for his cross-examination,
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therefore, the plaintiff was justified in seeking assistance of the
Court for issuance of the summons. The order passed in the
Revision Petition by this Court simply provides for one
opportunity to the plaintiff for examining the witness Vinod
Kumar Agrawal, wherein it has certainly been observed that the
plaintiff would make sincere endeavour of keeping the witness
present on the next date of hearing; but in view of the provisions
contained in Order XVI and Order XIX of Civil Procedure Code,
it cannot be said that this Court has curtailed or restricted the
plaintiffs right of moving an application under Order XVI, Rule
1(3) of Civil Procedure Code seeking assistance of the trial Court
for issuance of the summons."
9. The inference which could be drawn from the aforesaid judgment is
that when a party prays for summoning of a witness before the Court, then he
has to assign adequate reasons for seeking assistance of the Court for
summoning the witness and only when he is able to demonstrate/assigned
adequate reasons which are based upon his inability to keep the witness
present for their cross-examination, he would be justified in seeking
assistance of the court for issuance of summons. Herein case from the very
proceedings which has been placed before this Court on Board, it could be
seen that at some point of time or the other two of the witnesses i.e. notary
Rajendra Dayal Sharma and Manoj Bhargava were present before the Court
but they could not be cross-examined and thereafter when the matter
proceeded though they were the witnesses of the plaintiff had refused to
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attend the court. This court finds that the aforesaid reason to be a plausible
explanation and adequate for seeking assistance of the court for summoning
of those witnesses.
10. Accordingly, the present petition is hereby allowed. The learned
trial Court is directed to summon those witnesses. The parties are directed to
appear before the learned trial court on 22.04.2025.
11.Since it is an old matter and is pending for long, the learned trial
court is directed to complete the procedure and hear the matter in accordance
with law as expeditiously as possible and conclude the same within a
reasonable period.
12.Apart from the aforesaid, learned trial court is also directed to
handover the copy of summons to the petitioner to effect the service of the
said summons on the said witnesses as provided under Order 16 Rule 7 A of
CPC.
13.Interim order as directed by this Court vide order dated 21.09.2011
is hereby vacated as the petition is finally disposed of.
A copy of this order be sent to the trial court concerned for necessary
compliance.
C.C. as per rules.
(MILIND RAMESH PHADKE)
JUDGE
Van
