A summons to witness is a court process issued under Order XVI requiring a named person to appear before the court on a specified date to give evidence or produce documents. Attendance is compellable: a witness who receives a summons and does not comply is liable to be attached and penalised.
Why: The power to compel witness attendance is essential to fact-finding. A litigant who cannot compel an unwilling but material witness to attend is effectively deprived of the right to prove the case.
Legal Framework
| Provision | Subject |
|---|---|
| Order XVI R.1 | List of witnesses to be filed within 15 days of issue settlement |
| Order XVI R.2 | Application for summons to witness |
| Order XVI R.5 | Summons to produce document (duces tecum) |
| Order XVI R.10 | Penalty for non-attendance: attachment of property |
| Order XVI R.12 | Witness to be given tender of expenses |
| S.32 CPC | Courts may enforce attendance by attachment, arrest, or fine |
Procedure for Summoning Witnesses
- The party wishing to call a witness files a list of witnesses within 15 days of framing of issues (O.XVI R.1)
- The party applies for summons stating the name and address of the witness and the date of hearing
- The court issues the summons, served through court bailiff or post
- A tender of reasonable expenses for travel and subsistence must accompany the summons (O.XVI R.12)
Why a tender is mandatory: A witness cannot be compelled to travel at personal expense. The tender also prevents abuse of process by issuing summons without a genuine intent to examine the witness.
Types of Summons
| Type | Purpose |
|---|---|
| Attendance summons | Requires witness to appear and give oral evidence |
| Duces tecum summons | Requires witness to produce a specific document (O.XVI R.5) |
Consequence of Non-Attendance (S.32, Order XVI R.10)
If a witness does not appear after receiving a duly served summons and tendered expenses, the court may:
- Issue a warrant to arrest and bring the witness before the court
- Order attachment of the property of the witness
- Impose a fine not exceeding Rs. 500
Why: The compellability of witnesses is the backbone of adversarial fact-finding. Without enforcement mechanisms, parties could not discharge the burden of proof against unwilling witnesses.
Recall Check
- Within how many days of framing of issues must a party file the list of witnesses under Order XVI R.1?
- What is a duces tecum summons and under which provision is it issued?
- What are the consequences under Section 32 CPC if a witness fails to attend after service of summons?
Key Cases
State of UP v. Singhara Singh (1964) State-of-UP-v-Singhara-Singh-1964 Issue: Whether a court can compel a party to attend as a witness at the instance of the other party. Rule: Provisions for summoning witnesses apply to third parties; a party may be examined under Order X but cannot be compelled to attend as a witness for the opposing side. Held: The court cannot compel a party to attend as a witness at the other party's instance; Order X examination is the correct mechanism.
Ram Chandra v. State of UP (1957) Ram-Chandra-v-State-UP-1957 Issue: Whether a witness can be penalised for non-attendance when the summons was not accompanied by expense tender. Rule: A summons not accompanied by a tender of expenses is defective; non-compliance with a defective summons cannot attract penalty. Held: A witness who does not attend in response to a summons unaccompanied by expense money cannot be penalised.
Distinctions
| Aspect | Summons to Party (O.V) | Summons to Witness (O.XVI) |
|---|---|---|
| Recipient | Defendant in the suit | Third party called to testify |
| Purpose | Appear and contest the suit | Appear and give evidence |
| Expense tender | Not required | Mandatory (O.XVI R.12) |
| Default consequence | Ex-parte decree | Warrant, attachment, fine |
Flashcards
Q: What is the time limit for filing the list of witnesses after framing of issues? A: 15 days from the date issues are settled (Order XVI R.1).
Q: What is a duces tecum summons? A: A summons requiring the witness to appear and bring a specific document (Order XVI R.5).
Q: What is the penalty for a witness who fails to attend after valid summons? A: Section 32 CPC: warrant of arrest, attachment of property, or fine up to Rs. 500.
Q: Is a tender of expenses mandatory when summoning a witness? A: Yes. Order XVI R.12 requires a tender of reasonable travel and subsistence expenses. A summons without a tender is defective.
Exam Scenario
A summons was issued to W, a key witness, requiring attendance on a fixed date. No expense tender was included. W did not appear. The plaintiff applied for a warrant of arrest against W. W argues the summons was invalid. Decide.
The summons is defective for want of an expense tender under Order XVI R.12. A witness is entitled to be tendered reasonable expenses before being compelled to attend. Since the summons was defective, W cannot be penalised for non-compliance under Section 32 CPC. The warrant application should be refused. The plaintiff must re-issue the summons with a proper tender of expenses. W can be penalised only for failure to comply with a valid, properly served summons accompanied by the requisite tender.