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2001 DIGILAW 1160 (PNJ)

Vijay Pal v. Daya Ram

2001-10-18

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - The evidence of the petitioner was closed by order on July 29, 1998. Hence, this revision petition. 2. The plaintiff-respondent filed a suit for specific performance of the agreement. The suit having been contested by the defendant, the parties went on trial. The defendant, now petitioner, had produced some evidence. His remaining evidence was closed by order which is under challenge. 3. I have heard Mr. B.S. Rana, learned counsel for the petitioner and Mr. Sanjay Vij, learned counsel for the respondents. 4. The impugned order, for facility of reference, is reproduced as under:- "Present: Sh. Sudhir Singh, Advocate for the plaintiff. Sh. V.K. Sharma, Advocate, for the defendant No. 1. Sh. Bhagat Singh, Advocate, for the defendant No. 2. Two DWs present and examined. No other DWs present. Adjournment is requested. Heard. In the light of my order dated 22.7.1998, no ground is made out for adjourning the case for more DWS. The case is adjourned to 13.8.98 for rebuttal evidence and arguments. Sd/- Civil Judge (Sr. Division) Gurgaon 29.7.98." 5. Mr. Sanjay Vij, learned counsel for the respondents at the very outset raised an objection regarding the maintainability of this revision petition. It is contended that the petitioner had also moved an application under Order 18 Rule 17 of the Code of Civil Procedure for leading additional evidence. Therefore, once he had availed the remedy of leading additional evidence by way of filing an application, then the present revision petition against the impugned order whereby his evidence was closed would not be maintainable. 6. Whether the filing of an application under Order 18 Rule 17 CPC for leading additional evidence bars a party to challenge the legality of the order whereby his evidence was closed ? 7. If the impugned order is perverse having been passed against the norms and the principles envisaged under the Code of Civil Procedure then the filing of an application for leading additional evidence before the trial Court would be immaterial. Rather, it is a case where the trial Court has not properly appreciated the facts. Two witnesses, who were present on the date fixed for evidence, were examined. Adjournment requested for remaining evidence was declined on the grounds that no case is made out for adjourning the case. Rather, it is a case where the trial Court has not properly appreciated the facts. Two witnesses, who were present on the date fixed for evidence, were examined. Adjournment requested for remaining evidence was declined on the grounds that no case is made out for adjourning the case. A little bit of effort on the part of the trial Court would have saved the parties of unnecessary expense and the delay in the disposal of the case. 8. It is admitted fact that on 22.7.1998 petitioner had filed an application for summoning two witnesses, namely, Om Parkash, Document/Deed Writer and Tara Chand, Reader to Tehsildar Pataudi. He had sought the permission of the Court to deposit the expenses of these witnesses. The order passed on the application by the learned Civil Judge (Sr. Division), Gurgaon, is as under:- "Rs. 60/- + Rs. 14/- = Rs. 74/- as expenses of witnesses deposited on the filing of the application. Sd/- Civil Judge (Sr. Division) Gurgaon." "Rs. 74/- only deposited at Sr. No. 985 dated 27.7.98. Sd/- N.N. Account to SSJ, Gurgaon." 9. The petitioner, who had deposited the diet money had also filed the process-fee for the service of the witnesses. The witnesses were summoned for the date fixed, that is, for 29.7.1998. Whether the summons after due service were received or not ? The impugned order is totally silent on this point. In the event of non-receipt of the summons from the process serving agency, the official at fault is answerable. In case the witnesses do not appear despite service then the court is required to proceed against the witnesses and take necessary action under Order 16 Rule 10 of the Code of Civil Procedure. This aspect of the case was totally ignored by the trial Court. Thus, a party cannot be deprived of his right to conduct the case in a fair and proper manner nor he can be penalised for non-appearance of the witnesses because he is at the mercy of the Court who had issued the summons upon the witnesses. One of the witnesses was an official witness. He could not be produced by a party unless he is summoned by the Court. Ends of justice require that the petitioner be given opportunity of leading evidence by examining the aforesaid witnesses. One of the witnesses was an official witness. He could not be produced by a party unless he is summoned by the Court. Ends of justice require that the petitioner be given opportunity of leading evidence by examining the aforesaid witnesses. Reliance is also placed on Kewal Krishan v. Harnek Singh (dead) by L.R., 2001(3) Indian Civil Cases 152. 10. For the aforesaid reasons, this revision petition is allowed. The impugned order is set aside. The trial Court is directed to permit the petitioner to examine the witnesses already summoned by him, as mentioned in his application dated 22.7.1998. The trial Court is also directed to extend the assistance to the party so far as it relates to the service of summons upon the witnesses through the process serving agency. If need be, the petitioner will be at liberty to take the summons dasti. The order passed herein be not considered as a leverage for examining the witnesses named in the application for leading additional evidence. Parties through their counsel are directed to appear before the trial court on 22.11.2001. Revision allowed.