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.
Ram Chandra v State of Uttar Pradesh (1957) Ram Chandra v State of UP 1957
Citation: AIR 1957 Supreme Court 444
Rule: The power of a court to summon and compel the attendance of a witness must be exercised judiciously; a witness cannot be repeatedly harassed by successive summons issued without due regard to genuine difficulty or hardship, and courts must balance the need to secure evidence against the legitimate interests and convenience of witnesses.
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
What is the time limit for filing the list of witnesses after framing of issues?
15 days from the date issues are settled (Order XVI R.1).
What is a duces tecum summons?
A summons requiring the witness to appear and bring a specific document (Order XVI R.5).
What is the penalty for a witness who fails to attend after valid summons?
Section 32 CPC: warrant of arrest, attachment of property, or fine up to Rs. 500.
Is a tender of expenses mandatory when summoning a witness?
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.