Mishrilal vs Indermal

Samvatsar, J.—This revision-application is filed by the defendant Mishrilal.

The plaintiff Indermal filed a suit against the present petitioner in the Court of the Civil Judge at Indore for recovering a sum of Rs. 2257/3/6 alleged to be due on the basis of some forward contracts in silver and cotton. The defendant resisted the suit. The Civil Judge therefore framed issues and proceeded with the trial. As the burden of proving material issues lay on the defendant, he was asked to lead evidence first.

The trial court in course of the trial fixed 10th September, 1956 for defendant''s evidence. When the case was called on this date, it was found that the defendant''s witnesses were not present. On his behalf, it was stated that the process has been paid for summoning the witnesses, but the process clerk had made a contrary report. The case was therefore ordered to be put up on 11th September, 1956 to ascertain whether process fee had In fact paid. On 11th September, 1956 the court was satisfied that the defendant had paid the process on 27th August, 1956 but closed the defendant''s evidence, holding that the process was paid late. Aggrieved by the order by which his evidence was closed, the defendant has preferred this revision application.

Mr. S.R. Joshi, learned counsel for the petitioner was present. No one appeared on behalf of the plaintiff opponent.

It cannot be disputed that the order of the trial Court cannot be supported. The learned Civil Judge, has in passing the order completely overlooked the provisions of Order 16, Rule 1 Civil Procedure Code. That rule runs as follows:--

At any time after the suit is instituted the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.

The provisions of this rule are mandatory and a Court is bound to order summonses where the application is made by a party at any time after the institution of the suit and before his evidence is closed. The court cannot refuse to issue summonses on the ground that the application is made too late, though it is within the discretion of the court to refuse an adjournment of the hearing, if the summonses issued by the court returned unserved, because the process was paid late.

In the present case, the defendant had paid the process on 27th August, 1956 and it was incumbant on the court to issue process if necessary at party''s own risk. There is no jurisdiction for refusal to issue the process and at any rate, the court was not justified in closing the evidence when in spite of the application of the plaintiff, the court failed to issue the process.

I am satisfied that the trial court had failed to comply with the mandatory provisions of O.16, R. 1 and has in closing the defendant''s evidence exercised its jurisdiction with material irregularity.

I allow the revision-application, set aside the order of the trial court and direct the lower court to issue summonses to the defendant''s witnesses and to proceed to dispose of the suit according to law.

As the plaintiff-opponent has not opposed this revision-application, I make no order as to costs.