Piyush Mathur, J.:-

Defendant Gopal Das Renwal has preferred this Writ Petition under Article 227 of the Constitution of India against the order dated 1-5-2009 passed by the 8th Civil Judge Class-II, Gwalior, in Civil Suit No. 2-A/06, Smt. Dipika Jain vs. Gopal Das Renwal, wherein the trial Court has permitted the plaintiff to summon the attesting witness of the Will by issuance of summons.

2. The plaintiff has preferred a Civil Suit against the defendant seeking eviction of the premises as also for recovery of the arrears of rent by claiming herself to be the Landlady/Owner of the suit property on the strength of a Registered Will dated 4-2-2001, which was executed in her favour by the original landlord Late Shri Kesharimal Jain.

3. Defendant Gopal Das Renwal while denying the averments of the plaint has questioned the genuineness of the Will executed in favour of the plaintiff by further denying the relationship of the Landlord and Tenant between the parties.

4. The Court after framing of the issues had allowed the parties to lead their evidence and when the plaintiff had examined her witnesses and intended to examine the attesting witness of the Will, namely, Mr. Vinod Kumar Agrawal, his presence could not be procured and the plaintiff prayed for the closure of her evidence. At this point of time, the defendant filed an application under Order XIX, Rule 2 of the Code of Civil Procedure by making a prayer to the trial Court for directing the plaintiff to produce his witness Mr. Vinod Kumar Agrawal for cross-examination on his affidavit/examination-in-chief, but the trial Court had rejected this application filed on behalf of the defendant.

5. Defendant Gopal Das Renwal preferred Writ Petition No. 593/09 against the order of rejection of the application preferred under Order XDC, Rule 2 of Civil Procedure Code, wherein the Division Bench of this Court, while disposing of the Writ Petition on dated 25-2-2009, observed as follows:-

"So far as his examination-in-chief is concerned, if the defendant wants to reply on the said evidence, the defendant-petitioner can always rely on the same and the Court cannot say that the said examination-in-chief shall not be read at the time of deciding the case. Therefore, the Court has committed jurisdictional error in holding that the affidavit of Vinod Kumar Agrawal shall not be read at the time of decision of the case. As there is no cross-examination by the defendant in the present case, the defendant is ready and willing to cross-examine Vinod Kumar Agrawal. In such circumstances, he can definitely rely on the affidavit on behalf of Vinod Kumar Agrawal filed by the plaintiff and the Court can also draw an adverse inference against the plaintiff for not producing the said witness for cross-examination."

6. The plaintiff preferred a Review Petition being R. P. No. 89/09 by demonstrating that the observation about drawing an adverse inference against the plaintiff is running counter to mandate of Law and while considering the legal provisions and the prayer of the plaintiff, this Court observed as follows while disposing of the Review Petition:-

"After perusing the impugned order, we do not find that there is no mistake apparent on the face of the-record. However, in the interest of justice we deem it fit to grant one more opportunity to tender Vinod Kumar Agrawal for cross-examination by the defendant. Hence, we direct that if Vinod Kumar Agrawal is kept present by the plaintiff for cross-examination on the next date of hearing, he shall be cross-examined by the defendant."

7. Since this Court while disposing of the Review Petition had granted an opportunity to the plaintiff for presenting his witness Vinod Kumar Agrawal, an application was filed by the plaintiff under Order XVI, Rule 1(3) of Civil Procedure Code explaining circumstances of not bringing the witness before the Court and for praying of summoning the witness through the Court.

8. The defendant submitted reply to the application and demonstrated that summoning of the witness through Court would offend the two orders passed by the High Court in Writ Petition No. 593/09 and R. P. No. 89/09.

9. The trial Court while dealing with the application preferred under Order XVI, Rule 1(3) of Civil Procedure Code has considered the entire facts and observations of this Court given in the aforesaid two matters and found that the plaintiff is unable to bring the witness on her own and found the reasons to be legal and logical of issuing Process/Summons to the witness, sought to be examined by the plaintiff. The defendant has approached this Court again by challenging the legality and correctness of the order dated 1-5-2009 passed by the trial Court.

10. The contention of the Counsel for the petitioner/defendant is that when an application preferred under Order XIX, Rule 2 of Civil Procedure Code was rejected by the Court and observations were made by the High Court about 'tender'. Of the witness for his examination/cross-examination, therefore, the trial Court was not justified in overreaching the orders of the Superior Court (High Court) and the provisions contained in Order XVI or Order XIX of Civil Procedure Code could have not been invoked for the purpose of summoning the witness as the plaintiff had failed to take advantage of the orders of the High Court.

11. The Counsel for the respondent/plaintiff submits that while disposing of the Review Petition, this Court has granted an opportunity for tendering the witness for his cross-examination and when the plaintiff made serious efforts of,, bringing the witness to the Court, the witness expressed his unwillingness, which left the plaintiff with no choice except to prefer an application under Order XIV Rule 1(3) of Civil Procedure Code for seeking assistance of the Court machinery to enforce and secure the attendance of her own witness Vinod Kumar Agrawal. The Counsel for the plaintiff/respondent relied upon the provisions contained in Order XVI of Civil Procedure Code to demonstrates that when the plaintiff fails to secure the presence of the witness, then he can secure the presence of the witness in terms of sub-rule (3) of Rule 1 of Order XVI of Civil Procedure Code and the learned trial Court has not committed any error of Law, fact or jurisdiction in allowing the application.

12. Since the provisions of Order XVI and Order XIX of Civil Procedure Code are relevant for the disposal of the controversy involved in the matter, therefore, the same are being quoted herein below:-

"ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES.

1. List of witnesses and summons to witnesses. - (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Courts a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) A 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.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appears in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)."

"ORDER XIX-AFFIDAVITS.

1. Power to order any point to be proved by affidavit. - Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

2. Power to order attendance of deponent for cross-examination. -(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.

3. Matters to which affidavits shall be confined. - (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted.

Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall unless the Court otherwise directs be paid by the party filing the same."

13. A perusal of Order XVI, Rule 1(3) of Civil Procedure Code demonstrates that when a party prays for summoning 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, 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.

14. Therefore, we do not find any error in the order passed by the Court below in issuing Process/Summons to the witness Vinod Kumar Agrawal for deposing before the Court. Consequently, the Writ Petition is dismissed.

Petition dismissed.