Kulwinder Singh vs Balkar Singh

Sat Paul Bangarh, J.—The civil suit No. 1418 of 2010 has been pending against the petitioner and respondents Nos. 3 & 4, herein, that has been filed by respondents Nos. 1 & 2, herein. In that suit, six adjournments were granted to the petitioner and respondents Nos. 3 & 4 to complete and conclude their evidence, but they remained unsuccessful in doing so, and ultimately on 22.01.2013, their evidence was closed by order. Aggrieved against the same, the present petitioner and respondents Nos. 3 & 4 filed application (Annexure P-2) before the trial Court for recall of the order, but that was dismissed vide order dated 06.12.2013 (Annexure P-3).

Aggrieved against both the orders (supra), the petitioner who is defendant No. 1 before the trial Court has filed the present civil revision with prayer for acceptance, thereof, and for setting aside of both the orders and for grant of adequate opportunities for leading evidence.

Keeping in view the circumstances of the case, the service of notice of the civil revision upon the respondents Nos. 1 & 2 is dispensed with, who if felt aggrieved by this order, may file appropriate petition for recall of this order.

Learned counsel for the petitioner contended that the latter had deposited diet money and process fee for summoning of deed writer as also, an official witness. Even, he contended that there is note in the zimni order dated 07.10.2013, made by the official of the Court, that witness No. 1 i.e. deed writer is out of station and witness No. 2, who is a govt. official has gone for his evidence in another case. He further contended that when the diet money and process fee for summoning of these witnesses had been deposited in the trial Court, then, it was bounden duty of the trial Court to summon these witnesses through the agency of the Court and if after receiving summons, they have not appeared, then, they should have been summoned through warrant of arrest.

He further contended that DW-1 Kulwinder Singh, present petitioner, was present in the Court on 22.11.2013, but when he had gone to call his advocate and when he appeared in the Court, he learnt that his evidence has already been closed before lunch.

The learned counsel for the petitioner further contended that the latter may also be allowed to be tendered for cross examination by the respondents Nos. 1 & 2 and the official witness may be summoned through the agency of the Court and the deed writer, shall be produced by the petitioner at his own responsibility.

The learned counsel for the petitioner also placed reliance upon Sanjay v. Vinod 2013 (3) Civil Court Cases, 280 passed by this Court, wherein, it was held that even the trial Court can recall its own order, so, in this view of the judgment, learned counsel for the petitioner contended that it was required of the learned trial Court to recall its own order dated 22.11.2013. So, he contended that both the impugned orders may be set aside and the petitioner and respondents Nos. 3 & 4 may be allowed to lead evidence and for this purpose, one adjournment shall be sufficient and the other party may be compensated with cost.

There is merit in the contention raised by learned counsel for the petitioner. The official witness, obviously, has to be summoned by the Court through its agency, especially, when his diet money and process fee have been furnished by the petitioner.

The learned trial Court shall see to it as to whether diet money and process fee of the official witness have been furnished and if that is so, in that event, the summons be issued to the official witness and in case, he does not cause appearance after accepting summons, he be coerced to appear before it for deposition by way of issuance bailable or non-bailable warrants, as the case may be.

So far as, the other witnesses are concerned, the learned counsel for the petitioner has already submitted that the latter shall produce those witnesses at own responsibility. So, the impugned order is set aside and the petitioner is allowed one adjournment for his cross examination and for production of deed writer.

Deed Writer shall be produced by the petitioner at his own responsibility on the date fixed by the trial Court and both the witness be examined on one date. If due to some reason, the Court remained unsuccessful in concluding the evidence, in that event, the case may be adjourned to future date. So far as, the government official is concerned, if the diet money of this witness has been furnished by the petitioner, in that event, this witness be summoned through the agency of the Court and the petitioner shall also take dasti summons for effecting service upon this witness, in terms of Order 16 Rule 7A CPC. For causing inconvenience to the respondents Nos. 1 & 2, the petitioner is burdened with cost of Rs. 3000/- and payment, thereof, shall be condition precedent for further prosecution of this order.

Resultantly, the civil revision is allowed, in terms indicated (supra).