Chakervarti Ravan vs Ashok Kumar And Anr

Sanjay Dhar, J

Through the medium of the present writ petition, the petitioner has challenged order dated 14.02.2017 passed by the learned Sub-Judge (CJM), Kathua, whereby the petitioner/plaintiff’s right to lead the evidence, has been closed.

Heard and considered.

It appears that the petitioner had filed a suit before the court below seeking possession of the plot measuring 3 Marla along with constructions thereon comprising Khasra No. 109/83/11 situated at Chak Phoola Tehsil and District Kathua. It also appears that after framing of the issues, the plaintiff/petitioner was directed to lead evidence in support of his case and according to the plaintiff/petitioner, in terms of the directions of the court, the affidavits by way of evidence of the witnesses sought to be produced by the plaintiff, were filed before the court. It has been submitted that the plaintiff also deposited the diet expenses of the witnesses but inspite of this, the learned trial court without issuing the summons to the witnesses in respect of whom, the plaintiff has deposited the diet expenses, proceeded to close his evidence.

Nobody has appeared on behalf of the respondents to rebut the contentions raised by the petitioner.

The petitioner has placed on record the copies of the affidavits of his witnesses that have been filed by him before the trial court. Once, the plaintiff was permitted to lead evidence by way of affidavits, the trial court was obliged summon the deponents of the affidavits in respect of whom, the plaintiff had deposited the diet expenses. Once diet expenses stood deposited, it was the duty of the court to issue summons to the witnesses of the plaintiff for securing their presence, but it seems from the perusal of the impugned order that no such exercise has been undertaken by the learned trial court. Without summoning the witnesses of the plaintiff, his evidence has been closed. This has resulted in failure of justice as the case of the plaintiff has been shut out without giving him an opportunity to lead evidence.

For the foregoing reasons, the impugned order dated 14.02.2017 passed by the learned trial court is not sustainable in law and the same is, accordingly, set aside. The trial court is directed to summon the witnesses of the plaintiff in respect of whom, diet expenses have been deposited by the plaintiff and rest of the witnesses shall be produced by the plaintiff on his own responsibility.

Having regard to the fact that for about six years, the trial court proceedings have been stalled due to the order passed by this Court on 10.03.2017, the learned trial court would do well to expedite the trial of the case and in this regard, the petitioner shall extend cooperation to the trial court in producing the witnesses expeditiously and also by assisting the court in effecting service of summons on his witnesses.

Disposed of.

Copy of this order be sent to the trial court.