Subhash Chand vs Man Chand

Sandeep Sharma, J

Being aggrieved and dissatisfied with order dated 20.12.2021, passed by learned Senior Civil Judge, Nadaun, District Hamirpur, HP., whereby an application filed under Section 151 CPC, seeking therein permission to deposit the process fee and diet money for summoning and examining the defendant witnesses, came to be dismissed, petitioner has approached this court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside the aforesaid impugned order.

Precisely, facts of the case as emerge from the record are that vide order dated 4.1.2020, passed by the learned Civil Judge (Senior Division), Nadaun, District Hamirpur, H.P., in case No. 142/2014, defence of the petitioner - defendant to adduce evidence came to be closed and as such, he approached this Court by way of CMPMO No. 175 of 2020. Vide order dated 8.12.2021, this Court disposed of the aforesaid petition, reserving liberty to the petitioner-defendant to produce three witnesses including the defendant in support of his case before the learned trial court on a date to be fixed by the court subject to payment of costs of Rs. 1500/-. However, petitioner-defendant filed application under Section 151 CPC before the court below, seeking therein permission to deposit the process fee and diet money, enabling the court below to summon the four witnesses. Since petitioner-defendant at the time of the passing of order dated 8.12.2021, in CMP N0. 175 of 2020, had undertook before this Court to cause presence of witnesses on his own responsibility, court below rejected the application, stating therein that it has no power to summon the witnesses, especially when this Court while passing order dated 8.12.2021 had directed the petitioner-defendant to cause presence of three DWs including the defendant on the date to be fixed by the court below.

3 . Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the impugned order, this Court finds no illegality and infirmity in the same and as such, no interference is called for. Since there was a specific direction to the petitioner-defendant to cause presence of three witnesses in defence including himself, there was no occasion, if any, for him to file application for summoning of four witnesses. Leaving everything aside, once petitioner defendant himself undertook before this Court at the time of passing of the order dated 8.12.2021, whereby earlier order dated 4.1.2020, passed by the learned Civil Judge closing the defence of the petitioner defendant was set-aside, to produce the witnesses at his self responsibility and as such, court below had otherwise no power to allow the application filed by the petitioner- defendant to summon the witnesses on behalf of the defendant.

Consequently, in view of the above, this Court finds no illegality and infirmity in the impugned order, and as such, present petition is dismissed being devoid of any merits.