Hariram vs Krishan Lal

J.N. Bhat, J.—This is a Defendant's application in revision against the order of the City Judge (Sub-judge) Jammu dated 22-11-63 whereby

the evidence of the Defendant, has been closed.

It appears that the Defendant had summoned witnesses. The trial Court's order of 12-10-63 mentions the name of three witnesses, Rama, Ram

Saran and Paras Ram. About Rama it is stated that this witness was absent despite his having received expenses, and he should be summoned

through warrant in the amount of Rs. 200/-. Ram Saran and Paras Ram were not served as they were not available on their given addresses. It

was ordered that they should be summoned and the Defendant should spot out those witnesses. The case was adjourned to 22-11-63. On that

day the summons of Paras Ram was received back with the endorsement that he was not available. The process with respect to the other

witnesses was not received. As the Defendant failed to spot out the witnesses and was acting negligently his evidence' was closed and the case

was fixed for arguments on 4-12-63. This order, which is under revision, has been assailed by the learned Counsel for the Petitioner vehemently.

The order seems not to be maintainable for the following reasons:

(1) The process pertaining to the two witnesses was not received back at all. Therefore it could not be said definitely whether the Defendant had

failed to spot the witnesses or not and who was responsible for the non- service of the witnesses.

(2) The witnesses may have been served, but they had failed to appear for which the Defendant could not be held responsible.

(3) The Defendant was asked to spot only two witnesses Ram Saran and Paras Ram. The other witness was to be summoned through warrant.

The responsibility for that was of the Court and not of the Defendant and

(4) The order seems to have been passed rather hastily.

The learned Counsel for the Defendant has undertaken to produce Ram Saran and Paras Ram personally in court. They are entitled to get Rama

witness summoned through warrant as already ordered by the court. The, court will therefore, take due steps to get this witness served and appear

in Court. The Defendant may be permitted to appear as his own witness also. If the Defendant fails to produce the two witnesses Ram Saran and

Paras Ram, he cannot claim any Indulgence on the part of the Court in that behalf.

An argument was addressed to me that the order under revision could not be construed to be one under Order 17, Rule 3 of the Code of Civil

Procedure, because, in that case ""the' Court had to decide the case forthwith."" In this case I do not like to go into the complicated question of

Order 17, Rule 3 because if it (the order under revision) is held to be an Order under Order 17, Rule 3, then an appeal would lie not a revision.

But none-the-less I am not in agreement with the learned Counsel for the Petitioner that the word 'forthwith' would mean decision of a case that

very day.

I have found an authority reported as Dayalji Wasanji v. Kedarnath Onkarmal AIR 1953 Nag 222 wherein it has been held:

As I understand this rule (Order 17, Rule 3) a Court proceeding under this provision must decide the suit forthwith, that is oil the same day and it

cannot adjourn the hearing to some other day and then purport to decide it under Order 17, Rule 3.

The dictionary meaning of the word 'forthwith' is 'within a reasonable time immediately after some preceding, event without delay.' (Vide Webster's

New International Dictionary 3rd edn). This I think should be the interpretation placed upon this word in this rule also. The construction put upon

the word in AIR 1953 Nag 222 (Supra) will reduce the rule to an absurdity and in certain cases to an impossibility. Let us conceive a case which is

a voluminous one in which a large number of witnesses have appeared and there is a large number of documents to be examined. If this narrow

interpretation of Order 17, Rule 3 ware applied, to such a case, it will be impossible for any judge to decide the case on the same day that he

passes an Order under Order 17, Rule 3 because even if he begins the final isposal of the; case from the moment', he acts under Order 17, Rule 3,

it might take him days together to come to a conclusion as to what his final decision in the case should be. In other words it means that Order 17,

Rule 3 can never apply to such complicated cases, but that is not the intention of the law. Order 17, Rule 3 is a. general provision of law which can

be made applicable to any case. Order 17, Rule 3 contemplates final disposal of the suit on the material that is on record on that day. Therefore a

reasonable construction of this rule would suggest that from the action of the court it should transpire that the Court does not want to have any

further hearing of the case but has made up its mind to dispose of the case on the material that is already on record at that time and must, as the

dictionary meaning puts it try to dispose of the case within a reasonable time and without delay.

This revision petition is disposed of as indicated above.