Bashir Ahmad Shah vs Munsiff Ganderbal

Nobody is present for the petitioner nor the petitioner is present. This Revision petition, which has been filed by the petitioner is against the

order passed by the learned Munsiff, Ganderbal, and 23.6.1986. The impugned order reads as under:

Vukla Firiqeen hazir Gawa office kanongo hazir Gawa mazkoor Ka Izahar hai ki matlooba record wo sath na laya hai. Iskailiya mohlat Ka Kahan

hai Vakil mudayan ko esnisbat Koie Uzar na hai lihaza mohlat dijati hai Mioana misal saie rakim nai paya ki baroie hukum darmiyani mohrira 7686

gawah mazkoor bawajood daenay zamanat paish na huwa hai lihaza gawah mazkoor Jiski talbi morkha 241085 saie ajtak matlob thei bawasfai

tamil kae be hazir adalat na huwa hai lihaza gawa mazkoor kai khilaf eis nisbat Karvaie Kama lazmi haie Istor gawa par zir dafa 32 zabita diwani

kai jurmana mablaga so rupia aaid hota hai Hasab istidai vakil mudalum gawa rakam jurmana ander panch youm ada Karie Misal batakarur 19786

ko paish howaie hukum sunaya gaya Tehrirulsadar daskat Munsiff Sahib Ganderbal.

The order eminates from a civil suit in which the petitioner was called as a witness. The petitioner did not appear. Non bailable warrants were

issued against him. The petitioner submitted his bail. Again he did not appear, however on the date when the impugned order was passed, the

petitioner who was the witness appeared in the court and requested for adjournment on the ground that he could not trace out the records and the

revenue record is not with him. The court accepted his prayer and adjourned the case. Later on passed the order that the petitioner did not appear

on two dates, so he was fined by Rs. 100/under Section 32 of Civil Procedure Code.

From the impugned order, it appears that the witness had not appeared and nonbailable warrants were issued against him and when he made his

appearance on the due date, he was allowed to produce the record on some other date and for not appearing in person on two previous dates for

the disobedience of which he was fined by Rs. 100/. I don't dispute the powers of the learned Judge to impose a fine of Rs. 100/ but this power is

to be exercised in a proper manner and with the application of mind. There is no application of mind, while passing the impugned order by the

learned Judge, even it is admitted that the petitioner did not appear twice in compliance of court orders, but before imposing the fine proper course

to be adopted was to frame Robkar and direct him to show cause on the same day or on a future date why he did not appear before the court.

After giving the opportunity of being heard, it was upto the trial court to see whether cause shown by the witness was genuine or not. In case he

was satisfied, that the explanation tended by the witness was not satisfactory, he could validly exercise the power under Section 32 of C.P.C. by

imposing a single day fine upto Rs. 500/. This exercise Was not completed in the present case, no opportunity of being heard was given to the

petitioner and the order was passed at random arbitrarily which cannot stand in the eye of law.

For these reasons therefore, the impugned order is quashed. File be send to the trial court, who will frame Robkar and give an opportunity to

the petitioner of being heard and after giving such opportunity to pass the appropriate orders in accordance with law.