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Judgment
10 paragraphs · 329 wordsAmit Rawal, J.
C.M. No. 17583-CII-2015
Prayer in the present application is for early hearing of the revision petition which is listed for hearing on 07.12.2015.
Learned counsel for the applicant/petitioner submits that the trial Court has fixed the case for final arguments on 03.09.2015.
For the reasons mentioned above, which is duly supported by an affidavit, application is allowed and hearing of the petition is pre-poned from 07.12.2015 to today itself.
C.R. No. 7936 of 2014 (O&M)
Challenge in the present petition is to the impugned order dated 07.11.2014, Annexure P-6, whereby, the evidence of the petitioner has been closed by order. Mr. Rakesh Kumar Sharma, learned counsel appearing on behalf of the petitioner submits that list of witnesses to be summoned was submitted before the trial Court and the witnesses were summoned. However, the witnesses had refused service and the trial Court without resorting to the provisions, as envisaged, under Order 16 Rule 12 CPC, closed the evidence. Therefore, the impugned order suffers from illegality, infirmity and perversity, much less, without jurisdiction.
I have heard learned counsel for the petitioner and appraised the paper book.
From the perusal of the previous zimni orders, it is evident that the petitioner had submitted the list of witnesses for effecting the service. However, despite service, none appeared, the trial Court, in my view, ought not to have closed the evidence without resorting to the provisions of Order 16 Rule 12 CPC. In essence, the trial Court should have summoned them by issuing bailable warrants. Thus, no fault can be attributed to the petitioner-plaintiff in not completing the evidence and therefore, there was no occasion for closing the evidence. In view of what has been observed above, the impugned order dated 07.11.2014, Annexure P-6, is set aside and the petitioner is allowed to lead the evidence. The trial Court is directed to secure the presence of the witnesses, in accordance with law.
Accordingly, the revision petition is allowed.