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2006 DIGILAW 3011 (PNJ)

Mehboob Hasan v. Mehmood Hasan

2006-07-25

P.S.PATWALIA

body2006
Judgment , J. 1. The present revision petition has been filed against the order dated 18.3.2005 vide which the evidence of the plaintiff has been closed by court order. A reading of the order would show that the learned trial Court found that on the earlier date of hearing it was ordered by the Court that the plaintiff would not be permitted to examine any other witness on 18.3.2005 except PW1 Shri Mehboob Hasan. It is further recorded that the plaintiff has availed of sufficient opportunities for leading his evidence. Issues were framed on 12.05.2004 and since then no list of witnesses was filed by the plaintiff except an application filed by his counsel on that very date i. e.18.3.2005 for summoning witnesses. 2. Mr. Palli. learned Counsel, appearing for the petitioner contends that a reading of the order dated 14.1.2005 the date immediately preceding the date on which the petitioners evidence was closed would show that no statement was made by his counsel that he would not examine any witness other than the plaintiff Mehboob Hasan. The order made on 14.1.2005 reads as under: Present: Shri Shaukat Ali, Adv. for the plaintiff. Shri D. R. Lakhani, Adv. for the defendant. One PW i. e. PW 1, Sh. Mehboob Hasan is present and his statement is partly recorded. Cross examination of the said witness is deferred on the request of witness on the ground that he is not feeling well. Today is the last opportunity for the plaintiff to lead and conclude his entire evidence. Learned Counsel for the plaintiff has stated that on the next date of hearing he will not examine any other witness except PW 1. The case is adjourned to 18.3.2005 for recording the cross examination of PW 1 Shri Mehboob Hasan. The plaintiff will not be permitted to examine any other witness in his evidence on the next date of hearing. Last opportunity shall remain intact. 3. Reading this order Mr. Palli contends that what had in fact been contended by his counsel was that on the next date he would examine only the plaintiff while the remaining witnesses would be examined on any other date which the Court may have granted. Still further, it is conceded that reading of the various orders would show that only two opportunities were given to him on 14.5.2004 and 10.9.2004 when no PW was present. Still further, it is conceded that reading of the various orders would show that only two opportunities were given to him on 14.5.2004 and 10.9.2004 when no PW was present. On the third opportunity i. e.14.1.2005 the plaintiff was examined and the case was adjourned after deferring the cross examination of the plaintiff. He, therefore, submits that the order passed by the learned trial Court is a little harsh as his evidence has been closed without reasonable opportunity being granted to him to produce the same. In support of his contention he has relied upon a decision of this Court in Devi Sahai V/s. Municipal Committee, Narnaul (1988-2) 94 P. L. R.435 and contended that a reading of the said judgment would show that this Court has taken the view that the rules of procedure are meant for administering substantial justice and not to cause hindrances therein. In the aforementioned judgment this Court has referred to Order 18 Rule 4 whereby the Court can for reasons to be recorded direct or permit any party to examine any witness at any stage. 4. As against this learned Counsel for the respondents submits that the counsel for the petitioner had himself stated that he would not examine any witness except PW-1 i. e. the plaintiff. Therefore, the petitioner cannot now wriggle out of the statement made by his counsel. It is further contended by the learned Counsel that according to Order 16 Rule 1 a list of witnesses and summons is to be given within 15 days of the framing of the issues. In the present case issues were framed on 12.3.2004 and the list of witnesses had only been giver on 12.5.2004. He contends that in view of the provisions of Order 16 Rule 1 even that list of witnesses could not be entertained and therefore, evidence of the plaintiff has rightly been closed. He further states that the petitioner in fact did not even make an application for summoning witnesses within 15 days of the framing of the issues. 5. Having examined the controversy I am of the opinion that a reading of the orders would show that only three opportunities were given to the petitioner to lead his evidence. It is no doubt correct that on 14.5.2004 and 10.9.2004 no PW was present. However, in the third opportunity plaintiff was examined. 5. Having examined the controversy I am of the opinion that a reading of the orders would show that only three opportunities were given to the petitioner to lead his evidence. It is no doubt correct that on 14.5.2004 and 10.9.2004 no PW was present. However, in the third opportunity plaintiff was examined. I do not find it a case where the plaintiff had taken such an unreasonable long time to produce his evidence that the evidence of the plaintiff should be closed by order. I also do not read the statement recorded by the counsel for the plaintiff in the order dated 14.1.2005 to mean that he would riot examine any witnesses other than PW-1. According to me all what was stated was that on the next date of hearing he would only examine PW-1. This was factually done. 6. In so far as the next contention of the learned Counsel for the respondent that list of witnesses was not given within 15 days I agree with the submission made by the learned Counsel for the petitioner that the rules of the procedure are meant for promoting the cause of substantial justice and not frustrating the same. Procedure is the handmaid of justice. In fact this is precisely the view taken in Devi Sahais case (supra ). The relevant observations of the judgment are as hereunder: A perusal of the Sub-rule (4) of Rule 2 of the Code of Civil Procedure, as reproduced above, would show that for reasons to be recorded, the Court can permit any party to examine any witness at any stage. The rules of procedure are meant for administering substantial Justice and not to cause hindrance therein. Present is such a case where by mistake the plaintiff closed his evidence without realising that his own statement had not so far been recorded, and immediately thereafter he moved the court with an application. The defendant has not led his evidence so far and thus no prejudice would be caused to him if the plaintiff is allowed to appear as his own witness. Accordingly, this revision petition is allowed. The order of the trial Court is set aside. The petitioner is to be allowed one more opportunity to appear as his own witness which would be subject to payment of Rs.300/- as costs to be paid in the trial Court. Accordingly, this revision petition is allowed. The order of the trial Court is set aside. The petitioner is to be allowed one more opportunity to appear as his own witness which would be subject to payment of Rs.300/- as costs to be paid in the trial Court. The parties through their counsel are directed to appear in the trial Court on August 8, 1988. There will be no separate order regarding costs of this revision petition. 7. For the reasons aforementioned, I set aside the order dated 18.3.2005 closing the evidence of the plaintiff. The revision, petition is allowed in the aforementioned terms. .