Honble SINGH, J.– Heard the learned counsel for the petitioner and the learned counsel for the non-petitioners.

(2). In the instant case, the petition is admitted.

(3). A short question arising in this petition is whether the learned lower court was justified in closing the evidence of the petitioner-plaintiff when some of the witnesses against whom summons and warrants had been issued, did not appear in the court on the date of hearing fixed for their evidence.

(4). A perusal of the certified copy of the order-sheet dated 17.1.1998 shows that the suit was listed on 12.7.1997 for the evidence of the plaintiff. On 12.7.1997, the statement of Surendra Nath DW-1 remained in-complete as the original agree- ment was not available. On 31.7.1997, the case was adjournment at the instance of the counsel for the plaintiff. On 14.8.1997, the statement of the plaintiff could not be completed because the court time was over. On 30.8.1997, adjournment was sought on behalf of the plaintiff and the same was granted and the case was listed on 6.9.1997. On 6.9.1997, Surendra Nath DW-1 was examined but his statement re- mained in-complete. On the same day, the statement of DW-2 was recorded. On 10.9.1997, the witnesses of the plaintiff were not present and the case was adjourned to 13.9.1997. On 13.9.1997 also, the plaintiffs witnesses did not appear. On that day, the statements recorded by the Commissioner were produced in court. According to the order-sheet dated 25.10.1997,after recording the statement of Ramdeen and Surendra Nath, summons and warrants were ordered to be issued for the appearance of the remaining witnesses. On 13.11.1997, bailable warrant of arrest were ordered to be issued to enforce the attendance of the witnesses and summons were ordered to be issued to enforce the appearance of the witnesses. On the subsequent dates of hearing, the presiding officer of the court was on leave. On 8.1.1998, Khemraj and Surendra Nath were examined. An opportunity was given to the plaintiff to produce his witnesses himself. On that day, the learned counsel for the plaintiff did not move any application for issue of summons or warrants against any witness. On 17.1.1998, the witnesses for the plaintiff were not present and the learned District Judge rejected the prayer made by the learned counsel for the plaintiff for issue of warrants of arrest and summons.

(5). The learned counsel for the petitioner has submitted that when the learned District Judge had issued warrants of arrest and summons to enforce the attendance of the petitioners witnesses , it was necessary that fresh summons and warrants of arrest should have been issued when some of the witnesses did not appear on the date of hearing fixed by the court for recording the evidence. It is further submitted by him that the plaintiffs evidence ought not to have been closed on 17.1.1998 in view of the facts and circumstances mentioned above.

(6). The learned counsel for the non-petitioners has submitted that when the court directed on 8.1.1998 that the plaintiff should have produced his witnesses as it was necessary for the plaintiff to have produced his witnesses and since this was not done, learned District Judge was justified in closing the evidence of the plaintiff and this revision petition is not maintainable.

(7). I have carefully considered the submissions made by the counsels for both the parties and the facts and circumstances of the case. Order 16, Rule 10 C.P.C. prescribes the procedures to be followed if the witnesses fails to appear. Sub-rule (2) of Rule 10 of Order 16 reads:-

``Where the court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and copy of such proclamati

Click Here to Read the rest of this document