Muni Lal vs Pistodevi and Others

Alok Singh, J.—Learned Counsel for the Petitioner rightly stated that Plaintiff had already moved an application before the learned trial Court on 13.8.2010 to summon two witnesses mentioned in the application. Diet money and other expenses were also duly deposited by the Plaintiff-Petitioner.

According to learned Counsel for the Petitioner-Plaintiff, no order was passed on application dated 13.8.2010 for summoning the witnesses mentioned therein. Learned Counsel for the Petitioner further states that instead of passing the order on the application dated 13.8.2010 learned trial Court closed the evidence of the Plaintiff vide order dated 17.8.2010. According to learned Counsel for the Petitioner-Plaintiff, learned trial Court ought to have summon the witnesses mentioned in the application dated 13.8.2010 in view of the fact that those witnesses are most important witnesses to prove the documents filed on record.

Record reveals that application dated 13.8.2010 was moved by the Plaintiff to summon the witnesses, however, that application remained undecided. Thereafter, order dated 17.8.2010 was passed closing the evidence of the Plaintiff without deciding the application dated 13.8.2010. Thereafter, Plaintiff has moved another application to recall order dated 17.8.2010, however, same was dismissed vide impugned order saying allowing of this application would amount to recalling of the order whereby evidence of the Plaintiff was directed to be closed. Learned Counsel for the Petitioner has rightly stated that if evidence is wrongly closed without passing any order on the application for summoning of the witnesses then order closing the evidence can be easily recalled. If witnesses could not be summoned despite of moving appropriate application prior to the date fixed, closure of the evidence seems to be unjustified.

Learned Counsel for the Petitioner in view of the above seeks permission to withdraw this petition with liberty to move an appropriate application for recalling the order dated 17.8.2010.

Petition is dismissed as withdrawn with aforesaid liberty and with clarification that in the event such application is moved that shall be disposed of in accordance with law without being prejudiced from the order impugned dated 6.10.2010.