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2009 DIGILAW 1231 (PNJ)

Sat Narain v. Ram Mehar

2009-07-23

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This revision petition, under Article 227 of the Constitution of India, is directed, against the order dated 01.06.2009, rendered by the Court of Civil Judge (Senior Division) Panipat, vide which, it closed the evidence of the plaintiff/ revision-petitioner. 2. The plaintiff filed a suit for permanent injunction, on 20.07.2005. The service of the defendants, was completed, and the issues, were struck on 05.10.2005. The plaintiff examined some witnesses, and also filed the process fee and deposited the diet money of other witnesses, whose presence, was ordered to be procured, through bailable and non-bailable warrants, but they did not come present. Ultimately, vide the order, referred to above, the evidence of the plaintiff was closed. 3. Feeling aggrieved the instant revision petition, was filed by the revision- petitioner. 4. I have heard the counsel for the parties, and have gone through the record of the case carefully. 5. The Counsel for the revision-petitioner, submitted that, once the diet money had been deposited by the revision-petitioner, for summoning the witnesses, it was for the Court concerned, to procure their presence, by resorting to the relevant provisions, contained in the Code of Civil Procedure. He further submitted that the Court below, did not follow that procedure, in letter and spirit, as a result whereof, the service of the witnesses, could not be procured. He further submitted that the revision-petitioner, was not, at fault; in producing the witnesses, and, as such, the order impugned being illegal, was liable to be set aside. 6. On the other hand, the counsel for the respondent submitted that sufficient opportunity, was granted, to the revision-petitioner, to produce, and conclude his evidence, but he failed to do so. He further submitted that the Court below, was, thus, right in closing the evidence of the revision-petitioner. He further submitted that, the order impugned being legal and valid, was liable to be upheld. 7. After giving my thoughtful consideration, to the rival contentions, raised by the counsel for the parties, in my considered opinion, the revision-petition deserves to be accepted, for the reasons to be recorded, hereinafter. No doubt the issues, in this case, were struck on 05.10.2005. It is also evident, from the perusal of the file, that a number of dates, were given, to the plaintiff revision-petitioner for production of his evidence. No doubt the issues, in this case, were struck on 05.10.2005. It is also evident, from the perusal of the file, that a number of dates, were given, to the plaintiff revision-petitioner for production of his evidence. It is further evident, from the perusal of record, that sometimes the witnesses of the plaintiff/revision-petitioner, were examined-in-chief and their cross-examination was deferred, on the request of the Counsel for the defendants/respondents. It is further evident, that PW Chander Bhan, was summoned but he refused, to accept the service of summons. Thereafter, he was ordered to be summoned, through bailable warrants, in the sum of Rs. 5,000/- with one surety in the like amount, vide order dated 11.12.2007. The bailable warrant of Chander Bhan, was received back unexecuted for 02.02.2008. Summons of Angoori Devi, was also received back for 20.02.2008, with the report of refusal. Angoori Devi, was ordered to be summoned, through bailable warrants, in the sum of Rs. 5,000/- with one surety in the like amount, for 15.03.2008. It is further evident that bailable warrants of Chander Bhan for 15.03.2008 was received back duly executed, but he was not present, without any sufficient cause. He was, accordingly, ordered to be summoned, through non-bailable warrant, for 17.05.2008. It is further evident, from the order dated 17.05.2008 that non-bailable warrant of Chander Bhan was received back with the report of refusal, and he was again ordered to be summoned through non-bailable warrant for 23.07.2008. Ultimately, vide the order impugned, the evidence of the plaintiff/revision- petitioner was closed. The resume of the aforesaid zimni orders clearly shows that the trial Court, did not apply its mind, to the facts and circumstances of the case. Once the non-bailable warrant of Chander Bhan, was issued, he was required to be arrested, and produced, in the court, as a witness. It is unheard of that the trial Court, accepted that report of refusal of non-bailable warrants of Chander Bhan, and, thereafter, did not initiate any action, with regard to the attachment of his property, as per the provisions of law. The trial Court, thus, in my considered opinion acted in derogation to the provisions of law. The explanation of the Presiding Officers were called for, which have been received and are being dealt with separately. Procedure is, in the ultimate the hand-maid of justice, meant to sub-serve the ends thereof, than thwart the same. The trial Court, thus, in my considered opinion acted in derogation to the provisions of law. The explanation of the Presiding Officers were called for, which have been received and are being dealt with separately. Procedure is, in the ultimate the hand-maid of justice, meant to sub-serve the ends thereof, than thwart the same. The procedural wrangles, cannot be allowed to stay, in the way of grant of substantial justice. When substantial justice and the procedural wrangles are pitted, against each other, then the former will prevail over the latter. The principle of law, laid down in State of Punjab v. Shamlal Murari, AIR 1976 SC 1177, was to the effect that the procedure is, in the ultimate the hand-maid of justice, and not its mistress, and is meant to advance its cause, and not to obstruct the same. A procedural rule, therefore, has to be liberally construed, and-care must be taken, that so strict an interpretation be not placed thereon, whereby technically may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provision may result in the stifling of the material evidence of a party, even if, for adequate reasons, which may be beyond his control. We must always remember that procedural law is not to be a tyrant, but a servant, not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid and not mistress, a lubricant, not a resistant in the administration of justice. If the breach can be corrected without injury to a just disposal of the case, the Court should not enthrone a regulatory requirement into a dominant desideratum. After all, the Courts are to do justice, not to wreck this end product on technicalities. The order impugned suffers, from illegality, and perversity, and is, thus, liable to be set aside. 8. For the reasons recorded above, the revision-petition, is accepted. The trial Court is directed to conclude the evidence of the plaintiff/revision petitioner, within three dates, by resorting to the procedure, contained in the Code of Civil Procedure. It shall ensure that the service of Chander Bhan and Angoori Devi, witnesses is procured by all means, and they are examined. The other witnesses, if any, shall be produced, by the plaintiff/revision-petitioner. The plaintiff/revision-petitioner, is also directed, to ensure that the evidence is concluded, within three dates, which will commence w.e.f. 20.08.2009. It shall ensure that the service of Chander Bhan and Angoori Devi, witnesses is procured by all means, and they are examined. The other witnesses, if any, shall be produced, by the plaintiff/revision-petitioner. The plaintiff/revision-petitioner, is also directed, to ensure that the evidence is concluded, within three dates, which will commence w.e.f. 20.08.2009. The trial Court file be sent back, at once. In case, within three dates, the evidence of the plaintiff, is not concluded, then the trial Court shall be, at liberty, to close the same provided that he is found at default. The parties, are directed to appear in the trial Court on 20.08.2009 at 10.00 A.M. Petition allowed.