Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 454 (JHR)

Hasim Khan v. Md. Maniruddin

2020-03-06

H.C.MISHRA

body2020
JUDGMENT 1. Heard learned counsel for the plaintiff petitioner and learned counsel for the defendants opposite parties. 2. The plaintiff petitioner is aggrieved by the order dated 23.11.2017, passed by the learned Sub-Judge-IV, Giridih, in Miscellaneous Case No. 17 of 2017, dismissing the said miscellaneous case, which was filed for reviewing the order dated 08.05.2017 passed in T.S. No.65 of 2013, and for restoring the suit, which had been dismissed by the Trial Court, invoking Order XVI Rule 20 of the Code of Civil Procedure. 3. The necessary facts of this case lie in a short compass. The issues were framed in the aforesaid title suit on 24.11.2016, and the plaintiff was directed to file the list of witnesses. The list of witnesses was also filed on 22.02.2017. On 19.04.2017, time petition was filed for producing the witnesses which was allowed, and the case was fixed for 08.05.2017. On 08.05.2017, both the parties had put their attendance in the Court, but when the case was called out, no one appeared and the Court dismissed the suit, invoking Order XVI Rule 20 of the Code of Civil Procedure, stating that the case is dismissed for want of evidence of the plaintiff. It was against this order that the miscellaneous case was filed by the plaintiff, for reviewing the order, stating that the Court below had wrongly dismissed the suit under Order XVI Rule 20 of the CPC, but the Court dismissed the miscellaneous case as well, by the impugned order dated 23.11.2017. 4. Order XVI Rule 20 of the Code of Civil Procedure is reproduced herein below:- ''20. Consequence of refusal of party to give evidence when called on by Court.- Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.'' 5. A plain reading of Order XVI Rule 20 of the Code of Civil Procedure shows that this power can be invoked by the Court only when the party was present in the Court and had refused to give the evidence and to produce the document which the party had in its possession at that time. A plain reading of Order XVI Rule 20 of the Code of Civil Procedure shows that this power can be invoked by the Court only when the party was present in the Court and had refused to give the evidence and to produce the document which the party had in its possession at that time. Since the plaintiff was not present in the Court, there was no question of any refusal by the plaintiff for producing the evidence and in fact, it was the plaintiff who filed list of witnesses and had prayed time on the earlier date for producing the witnesses. It was only inadvertently, or due to some reason, when the case was called out, none of the parties were present in the Court. 6. As such, it is apparent from the plain reading of this provision that that in that event, it was not open to the Court to dismiss the suit invoking Order XVI Rule 20 of the Code of Civil Procedure, rather the Court could have either awaited the presence of the plaintiff in the Court, or could have dismissed the suit under the provisions of Order IX of the Code of Civil Procedure, in which case the plaintiff had certain rights to file fresh suit or to get the suit restored, but in the present case, Order XVI Rule 20 has wrongly been invoked by the Court below, which also deprived the plaintiff of such rights as available under the provisions of Order IX of the Code of Civil Procedure. 7. For the foregoing reasons, I am of the considered view that the impugned order dated 23.11.2017 passed by the learned Sub-Judge-IV, Giridih, in Miscellaneous Case No. 17 of 2017, is ex-facie, illegal and cannot be sustained in the eyes of law. Accordingly, this order, is hereby, set-aside and the Trial court is directed to pass the order afresh in accordance with law, after giving opportunity to the parties. 8. This revision application is accordingly, allowed with the direction as above.