Summoning of Witnesses Under Order XVI and Order XVI-A of the Code of Civil Procedure,
1908
The Code of Civil Procedure, 1908 (CPC) provides a structured framework for summoning
and ensuring the attendance of witnesses in civil proceedings. Order XVI governs general
procedures for summoning witnesses, while Order XVI-A specifically addresses the
attendance of detained individuals (e.g., prisoners). Together, these provisions ensure that
parties can effectively present evidence while balancing judicial efficiency and witness
rights. Below is a detailed, organized analysis of both orders, including key rules, case laws,
and procedural nuances.
Order XVI: Summoning and Attendance of Witnesses
1. Submission of Witness List (Rule 1)
Under Rule 1, parties must submit a list of witnesses they intend to call within 15 days after
the court frames issues in the case. This list must specify whether each witness will testify
orally or produce documents. The rule aims to prevent delays and ensure both parties are
prepared for trial.
• Late Applications: If a party fails to submit the list within 15 days, the court may
permit late inclusion upon showing "sufficient cause" (e.g., unforeseen
circumstances).
• Case Law: In Kokkanda B. Poondacha v. K.D. Ganapathi (2011), the Supreme Court
stressed strict adherence to timelines under Rule 1 to avoid procedural delays.
2. Application for Summons (Rule 1(2))
A party seeking to summon a witness must file an application stating the purpose of the
summons (e.g., testimony or document production). The application must demonstrate the
witness’s relevance to the case.
• Case Law: In Ramsiya v. Anuradha (2016), the Madhya Pradesh High Court held that
vague applications lacking specificity about the witness’s role are liable for
rejection.
3. Court’s Discretion to Permit Additional Witnesses (Rule 1(3))
The court may allow parties to call witnesses not included in the original list if they show
"sufficient cause" for the omission. This discretion ensures justice is not thwarted by
technicalities.
• Case Law: In Rehman Hussain v. Althaf Hussain (2003), the Karnataka High Court
ruled that courts must assess whether the omission was deliberate or accidental
before permitting additional witnesses.
4. Mode of Service and Tendering of Expenses (Rules 2–3)
• Expenses: The court fixes traveling expenses and daily allowances for witnesses,
which the requesting party must deposit before summons are issued.
• Case Law: In Arulmighu Dhandayuthapani Swamy Temple v. State of T.N. (1992), the
Madras High Court emphasized that non-payment of expenses invalidates summons,
as it burdens witnesses unfairly.
5. Consequences of Non-Attendance (Rule 10)
If a summoned witness fails to attend without a lawful excuse, the court may:
• Issue a proclamation for their appearance.
• Issue a warrant for arrest (with or without bail).
• Case Law: In Manohar Lal Chopra v. U.G. Choudhury (1957), the Supreme Court held
that non-compliance with summons amounts to contempt of court, warranting strict
penalties.
6. Examination of Witnesses (Rule 14)
The court may suo motu (on its own) summon any person as a witness, including parties to
the suit, if their testimony is deemed essential for justice.
• Case Law: In Veesam Mohan Reddy v. P.S. Chetty (1988), the Andhra Pradesh High
Court clarified that courts must exercise this power cautiously to avoid harassing
witnesses.
7. Production of Documents (Rule 6)
A party may request another party to produce a document in their possession, provided the
document is described with reasonable accuracy.
• Case Law: In Shamim Ahamed v. Mohd Haneef Quareshi (2020), the Karnataka High
Court ruled that vague requests for documents lacking specificity are inadmissible.
8. Special Provisions for Government Servants
Certain High Courts (e.g., Bombay) have amended Order XVI to exempt government
agencies from depositing expenses when summoning their own officers. This streamlines
the participation of public officials in judicial proceedings.
Order XVI-A: Attendance of Prisoners as Witnesses
1. Scope and Definitions (Rule 1)
• "Detained": Includes individuals under preventive detention.
• "Prison": Refers to jails, reformatories, and other detention centers.
2. Production of Detained Witnesses (Rule 2)
Courts may order the production of a detained witness if:
• Their testimony is indispensable to the case.
• The prison is within 25 km of the court (unless waived for exceptional reasons).
• Case Law: In State of U.P. v. Deoman Upadhyaya (1971), the Supreme Court
mandated strict compliance with procedural safeguards to protect prisoners’ rights
during transportation.
3. Expenses (Rule 3)
The party requesting the prisoner’s attendance must bear escort and travel costs, as
determined by the court. High Courts may prescribe standardized expense scales.
4. Safeguards for Detained Witnesses
• Prisoners may only be produced if their testimony cannot be obtained via
commission (e.g., written interrogatories).
• Courts must ensure prisoners are not subjected to arbitrary treatment during
transit or testimony.
Procedural Intersections and Judicial Discretion
1. Overlap Between Orders XVI and XVI-A
• Rules on expenses (Order XVI, Rule 2) and penalties for non-compliance (Rule 10)
apply to detained witnesses under Order XVI-A.
• Courts may use suo motu powers (Order XVI, Rule 14) to summon prisoners if their
testimony is critical.
2. Judicial Discretion in Summoning Witnesses
Courts may reject summons if:
• The request is frivolous or intended to harass (e.g., summoning a witness from a
distant location without justification).
• The witness’s testimony is irrelevant or repetitive.
• Case Law: In S. Nihal Singh v. Arjan Das, the court emphasized that summoning
witnesses must align with the principle of proportionality to avoid unnecessary
burdens.
Critical Analysis and Practical Challenges
1. Delay in Issuing Summons: Courts often face backlogs, leading to delays in serving
summons. Automated systems for summons issuance, as suggested in Rooprani v.
Prem Singh, could mitigate this.
2. Financial Burden on Parties: Small-scale litigants may struggle to bear witness
expenses, potentially undermining access to justice.
3. Security Concerns with Prisoners: Transporting detained witnesses risks security
breaches, necessitating coordination between courts and prison authorities.
Conclusion
Order XVI and XVI-A of the CPC create a balanced framework for witness summoning,
ensuring that parties can present evidence while safeguarding witness rights. Judicial
precedents like Kokkanda B. Poondacha and Deoman Upadhyaya highlight the importance
of procedural rigor, transparency, and proportionality. However, challenges such as delays
and logistical hurdles require systemic reforms, including digitization of summons
processes and standardized expense guidelines. By adhering to these provisions, courts can
uphold the integrity of civil trials and advance the overarching goal of delivering justice.
