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2013 DIGILAW 597 (PAT)

Sundar Mahto v. Sumitra Devi

2013-05-07

VIKASH JAIN

body2013
ORAL ORDER Heard the parties. 2. The present petition has been filed for quashing the order dated 22.11.2012 passed by the learned Munsif, Hilsa (Nalanda) in T.S.No. 34/09 whereby and whereunder he has rejected the petition of the petitioners-defendants dated 18.9.2012 for examination of further witnesses. 3. It is submitted that although ten witnesses have been examined on behalf of the defendants, some more witnesses including the defendant himself were missed to be included in the list and ought to have been allowed to be examined. 4. Learned counsel for the plaintiff-respondent on the other hand submits that only three witnesses have been examined by the plaintiff to prove her case and the prayer of the defendants- petitioners for examination of witnesses is nothing but a ploy to delay the matters. He also relies on the decision reported in AIR 1995 Jammu and Kashmir page-32, para- 7 in the case of Yashpal Sawhney v. M/s. Gandotra Traders, wherein it has been observed that in the context of number of witnesses to be examined in terms of Order 16, Rule 1, C.P.C. the Court has to apply its mind and restrict the number of witnesses at its discretion to an extent which caters to the requirement of the case. It is further submitted that the defendants- petitioners have earlier filed list of eleven witnesses including the name of the defendants. The second list dated 17.10.2011 was also filed for 12 defence witnesses (excluding the defendants) and out of which ten witnesses have been examined and finally a third list dated 18.9.2012 for 9 witnesses has been filed, which however has not been entertained. 5. Having heard the rival submissions of the parties, this Court is of the opinion that the impugned order does not suffer from any error requiring interference under Article 227 of the Constitution of India. 6. In the present case, the learned Court has duly applied its mind and observed that in the facts and circumstances of the case, it would not be in the interest of justice to allow the witnesses of the case. As held in Yashpal Sawhney v. M/s. Gandotra Traders (Supra), the discretion lies with the concerned court in the matter of the number of witnesses to be allowed to be examined with a view to control the proceedings. As held in Yashpal Sawhney v. M/s. Gandotra Traders (Supra), the discretion lies with the concerned court in the matter of the number of witnesses to be allowed to be examined with a view to control the proceedings. No infirmity can be found in the exercise of discretion in his behalf by the learned, court in the instant case. 7. The writ petition is, accordingly, dismissed.