Phoonwati and Another vs Rajesh Kumar

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India praying for quashing of order dated 10.09.2010 passed by learned Civil Judge(Junior Division), Malerkotla vide which evidence of Petitioners-defendants, was closed

I have heard learned Counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

It has been contended by learned Counsel for the Petitioners that on the application filed by Petitioners they were allowed to take Dasti summons of only witness, namely, Rajinder Pal Sharma, who remained to be examined in this case and however, the witness could not be served and the fact was brought to the notice of the Court and despite that their evidence was closed.

Admittedly, sufficient opportunities were availed by Petitioners-Defendants to adduce evidence. The impugned order was passed when evidence was not completed by Petitioners-Defendants despite last opportunity. Petitioners-Defendants should have taken the summons for service of the witness before the first date of hearing fixed for their evidence.

However, in view of the fact that he was allowed to take Dasti summons of this witness by learned trial Court for the date fixed, vide which he could not be served, one opportunity can be granted to Petitioners-Defendants to examine the said witness at their own responsibility and the other party can be compensated by way of cost.

Hence, in view of these facts, the present revision petition is accepted. Impugned order is set aside.

Learned trial Court is directed to grant one effective opportunity to Petitioners-Defendants to examine the only witness, Rajinder Pal Sharma, at their own responsibility subject to payment of `5,000/-as cost, which shall be a condition precedent.

Disposed of accordingly.