Summoning of witness in Civil Suit

Considerations for court while summoning a witness:

Discretion of court:

Once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in cases where objections are raised, the bona fides of the request has to be looked into and appropriate orders passed.

Suit for recovery of attorney/lawyer fee:

The controversy between the parties was that the plaintiff, who is an advocate/lawyer, was engaged for services to be rendered to defendant No. 1. The case of the plaintiff is that his dues on account of professional fees have not been cleared by the defendants. Apart from this, the plaintiff has also claimed damages from the defendants. The case of the defendants is that the defendant No. 6, which is an international firm of trade mark attorneys and had been looking after the interests of Defendant No. 1, had dealt with the plaintiff for the purposes of filing oppositions in respect of certain trade mark applications in India. The said oppositions were to be filed by the plaintiff in respect of the trade marks of the defendant No. 1. It is also pertinent to note that initially the plaintiffs’ services had been engaged on behalf of Dunlop Slazenger Group Limited. The latter company was acquired by the defendant No. 1 in 2001. Mr Mike Ashley, who is sought to be summoned as one of the witnesses, is the sole shareholder of the said defendant No. 1 company.

Summoning other party as witness:

While there is no bar to a party seeking the summoning of another party in the same suit as his witness, it is also clear that such an act is unusual and that it should only be permitted if the application for summoning the opposite party is bona fide and is not vexatious or an abuse of the process of the Court. Apart from this, there is the standard question which the Court has to consider in the case of summoning any witness as to whether it is necessary to summon the witness for which the application has been moved. Order 16 Rule 1 (2) CPC clearly stipulates that the party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. This in itself indicates that it is not as if the Court has to allow every application for summoning of a witness. The party seeking the summoning of a person as a witness has to specifically indicate the purpose for which he or she is proposed to be summoned. It is obvious that the Court has to apply its mind and exercise discretion in a judicial manner.

[Source: Dr. Amitabh Sen v. Sports World International. (Delhi High Court)]

Thus a party who seeks for a prayer to the Court to issue summons to a witness, must reveal to the Court the purpose for which the witness is proposed to be summoned.

Comment: It appears, the witness can be summoned by a party to prove a specific point in case but not to make a fishing or roving inquiry to establish a fact not specifically pleaded or fact nor specified in the application to summon the witness.