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2000 DIGILAW 123 (PNJ)

Udey Paul v. Vinod Kumar And Ors.

2000-02-02

V.M.JAIN

body2000
Judgment V.M.Jain, J. 1. This is a revision petition against the order dated October 31, 1998 passed by the trial Court closing the evidence of defendant No.3 by order of the Court. 2. Notice of motion was issued. 3. Counsel for the parties have been heard. 4. Vide order dated June 8, 1998, the trial Court had observed that no DW was present on behalf of defendant No.3 and an adjournment was prayed and accordingly the was adjourned to September 1, 1998 for defendants evidence, which was to be the last opportunity for the said defendant to conclude the evidence at own responsibility. On September 1, 1998, two DWs were present and examined. Since it was the last opportunity afforded to the defendants to produce evidence, the learned counsel appearing for defendant No. 3 submitted that he was to summon one witness from the office of the Sub-Registrar and that the witness will be produced at his own responsibility by collecting Dasti summons and non-service of the witness would not operate as ground for adjournment of the case. The counsel for defendant No.3 had also undertaken to produce his witness and in the event of non-production of the witness to close the evidence of the defendant. Accordingly, the case was adjourned to September 22, 1998. On September 22, 1998, the witness from the office of the Sub-Registrar was not present as he had mentioned on the summons that he was bound down in some other Court. No other witness of the defendant was also present on that date. At the request made by the counsel for the defendant, the case was adjourned to October 8, 1998 with the direction that the Registration Clerk from the office of the Sub-Registrar be summoned through bailable warrants for the said date and that "other witness if any will be examined by the defendant subject to payment of Rs.500/- as costs to Vinod Kumar (plaintiff) through account payee cheque." On October 8, 1998, no witness was present. The bailable warrants to the Registration Clerk could not be issued for which the Ahlmad was warned to be careful in future and the case was adjourned to October 31, 1998 for which date fresh bailable warrants were ordered to be issued against the Registration Clerk. On October 31, 1998, the Head Registration Clerk was present and examined. The bailable warrants to the Registration Clerk could not be issued for which the Ahlmad was warned to be careful in future and the case was adjourned to October 31, 1998 for which date fresh bailable warrants were ordered to be issued against the Registration Clerk. On October 31, 1998, the Head Registration Clerk was present and examined. However, no other witness was present on behalf of the defendants nor the costs of Rs.500/- was paid. Even the counsel appearing for the defendant was not prepared to close-the evidence of the defendant and sought adjournment for examining other witnesses. The learned trial Court, after considering the entire matter, came to-the conclusion that there was no justification for giving another adjournment as defendant No.3 had failed to produce the witnesses who were to be examined by him. Accordingly, the evidence of defendant No.3 was closed by Court order vide order dated October 31, 1998. It is against this order of the trial Court that defendant No.3 has filed the present revision petition. 5. The learned counsel appearing for the petitioner has submitted that the petitioner had already deposited the process fee in respect of the witnesses who are yet to be examined and non-service of the summons upon the witnesses could not result in the closure of the defendants evidence by the order of the Court. However, 1 find no force in this submission of the learned counsel for the petitioner. As referred to above, vide order dated June 8, 1998, the case was adjourned to September 1, 1998 for defendants evidence being the last opportunity and the witnesses were to be examined by the defendant at own responsibility. Subsequently, on September 1, 1998, the counsel for the defendant-petitioner had undertaken to produce the witnesses, and in the event of non-production of the witnesses to close the evidence of the defendant. On the next date i.e. September 22, 1998, the Registration Clerk could not be served. However, with regard to other witnesses it was made clear by the trial Court that if the defendant wants to examine other witnesses, the same shall be examined subject to payment of Rs.500/- as costs. Admittedly, the costs of Rs.500/- had not been paid to the plaintiff nor the other witnesses were examined on October 31, 1998, on which date only the Head Registration Clerk was examined. Admittedly, the costs of Rs.500/- had not been paid to the plaintiff nor the other witnesses were examined on October 31, 1998, on which date only the Head Registration Clerk was examined. Under these circumstances, the learned trial Court was perfectly justified in closing the evidence of defendant No.3 by Court order and no fault could be found with the order dated October 31, 1998 passed by the trial Court while closing the evidence of defendant No.3. The learned counsel appearing for the petitioner has further submitted that another defendant, namely, Chander Paul, had also filed an application for setting-aside the ex parte proceedings taken against him and that the case was adjourned by the Court for reply and consideration of the said application. It was submitted that once the case was being adjourned, the Court should have allowed one opportunity to the petitioner to produce the remaining evidence. This argument raised before me by the learned counsel for the petitioner is mis-conceived. The Court was to consider the conduct of defendant No.3 regarding production of his witnesses. If defendant No.3 had failed to examine the witnesses inspite of various opportunities, the trial Court was perfectly justified in closing the evidence of defendant No.3. Merely because another defendant (who is the real brother of the present petitioner) had moved another application for setting aside the ex parte proceedings on the date when the evidence of defendant No.3 was closed and the trial Court had adjourned the case for reply and consideration of the said application, it would not give a handle to the present petitioner to seek one more date to examine the remaining evidence. 6. In view of the above, finding no merit in this revision petition, the same is dismissed. No costs. 7. Parties, through their counsel, are directed to appear before the Court below on March 28, 2000 for further proceedings in accordance with law.