Jai Pal vs Panmeshwari and another

A.L. Bahri, J.—The revision petition is directed against the order dated 18th September 1987 passed by the Sub-Judge IInd Class, Karnal, in Civil Suit No. 1133 of 1985 Jai Pal v. Panmeshari and others. Vide the impugned order the evidence of the plaintiff was closed and the case was adjounred for the defendants evidence.

Contention of the learned counsel for the petitioner is that Om Parkash- Member Panchayat- witness was summoned and served but was absent. There was no fault of the plaintiff that his evidence was closed by the trial Court. I find force in the contention of the learned counsel for the petitioner. The proceedings of the trial Court are reproduced in the grounds of revision, from which reference is being made February 18, 1987 was the first date fixed for evidence of the plaintiff. On that date process-fee and diet money was paid and adjournment was allowed on payment of Rs. 50/ as costs. The case was adjourned to June 5, 1987. On that date evidence was not present and the case was adjourned to September 18, 1987, mentioning therein that it was the last opportunity allowed to the plaintiff to produce evidence. The impugned order was passed on September 18, 1987 when the statements of two witnesses were recorded and the evidence of the plaintiff was closed. In the impugned order there is no reference regarding the service of Om Parkash witness. However, learned counsel for the petitioner has referred to the grounds of revision, wherein this fact is mentioned that Om Parkash witness was served but was as absent. If that is so, the trial Court was not at all justified in closing the prosecution evidence. No doubt, there was some delay on the part of the plaintiff for payment of diet money. However, that is insignificant as on the date fixed the witness was served. If the witness was absent despite service, it was the duty of the Court to procure his presence by other process, such as by issuing bailable or non-bailable warrants. The matter was considered by Goyal, J. in Kuldip Singh and others v. Gurdial Singh alias Dyal Singh and others 1987 P.L.J. 311. In that case after deposit of process-fee and diet money the witness was summoned and was served but was absent, and the evidence was closed by the Court. Goyal, J. observed as under:-

If the Court was of the opinion that the ground stated was a more excuse, it could order the summoning of the witnesses by bailable warrants. The plaintiffs being not responsible for the non-appearance of the witnesses their evidence could not be closed simply on the ground that it was their responsibility to produce the witnesses.....

Acting on the ratio of the decision referred to above, I find that the trial Court in the present case was not justified in closing the evidence of the plaintiff when Om Parkash-, plaintiff''s witness,- though served was absent on the date of hearing. The mere fact that the counsel had given an under taking on the previous date that on non-appearance of his witness his evidence should be deemed to have closed, is no ground to take the drastic step. The law does not require asking counsel for the parties to make such statements. Each case has to be taken in to consideration keeping in view its own facts.

For the reasons recorded above, this revision petition is accepted, the impugned order is set aside and the trial court is directed to give one more opportunity to the plaintiff to produce Om Parkash witness.