Vinod Ramkisan vs Peerchand Bhola

Samvatsar J.

Plaintiff filed a suit in the Court of the Civil Judge 2nd Class Sendhwa for recovery from the Defendant of a sum of Rs. 373/- alleged to be due on account of service rendered. The Defendant resisted the suit where upon the trial proceeded.

In course of his trial, the Plaintiff was called with his evidence on 15-5-1951. Plaintiff was present on that day along with one witness, Ramdulare. His witness Vazir was not served, whereas the other witnesses Garbar was absent though he was duly served. The Defendant''s pleader objected to examine the evidence piecemeal and the Court adjourned the case to 5-7-51.

On the said date the Plaintiff was present though his pleader was absent. It appears that plain- till''s witnesses were served but they were not present. The Court closed the evidence on the ground that the Plaintiff had not produced his witnesses though ho was given the last opportunity to do so. The plain till'' who was present, was not examined the same day and the case was adjourned for the examination of the Plaintiff and for the Defendant''s evidence to 23-3-1951. The Plaintiff has filed this revision against the order closing his evidence.

Mr. Bharucha appeared for the Petitioner. No one appeared for the other side. He contended that on 15-5-1951 the Plaintiff and his witness Ramdulare were present but were not examined by the Court. It was for the Court to secure attendance of the witness Ramdulare for the next date of hearing but the Court only gave information to the witness of the next date of hearing and directed him to appear on said date. If the witness did not turn up the Plaintiff could not be blamed. The Court was therefore wrong in cancelling the evidence of this witness,

The learned Counsel next submitted that the Plaintiff had succeeded in serving the other witnesses and if they did not turn up it was for the Court to take proper action against them and to secure their evidence. The Court could not mish the Plaintiff after he had complied the ''orders of the Court and managed to get the witnesses served.

There is much force in the contention of the Petitioner. It was the duty of the Court to examine the Plaintiff and such ox his witnesses as were present in Court on March 15, 1951, but the Court failed to do so and on the next date suddenly remembered that the case had gone old. If the witnesses did not turn up in response to the summons the Court should have issued coersive (process?) but the Court failed to do that, also. It appears that on 11-7-1951 two of the; Plaintiff''s witnesses (1) Ramdulare and (2) Garbar put in applications to the Court. Garbar in his application gave his reasons for his inability to, attend the Court on the date of hearing and promised to remain present in Court on such date as the Court would be pleased to fix. Ramdulare in his application made the same prayer. Instead of securing the attendance of these witnesses who had thus appeared; before the Court, the Court rejected their application on July 14, 1951 with, the remark that the Plaintiff''s evidence was closed.

I think the lower Court has acted with material irregularity in exercise of its jurisdiction and the order of the lower Court closing Plaintiff''s evidence deserves to be set aside.

I allow the revision application, set aside the order of the lower Court and direct that it should take steps to secure attendance of the Plaintiff''s witnesses and should proceed to dispose of the case according to law. The costs of this revision application will be costs in the cause.