The main legal point established in the judgment is the requirement for the court to use coercive methods to secure the presence of summoned witnesses and grant opportunities for concluding evidence.

Vinod K.Sharma, J.

1. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 9.10.2009, attached as Annexure P-3/A with this Petition, vide which evidence of the petitioner was closed and also the order dated 18.11.2009 vide which application made to recall the order dated 9.10.2009 was dismissed.

2. Order dated 9.10.2009 reads as under:-

" Today case was fixed for PWs being last and final opportunity. No PW is present. Neither warrant issued against the witness as per order dated 10.8.2009 received back. Perusal of the file shows that plaintiff has availed several opportunities but has failed to conclude his entire evidence. Perusal of the file further shows that as per directions of the court, plaintiff could not get the service effected of the witness through bailable warrant also. Hence as per order dated 10.8.2009 and finding no justification for further adjournment for PWs the plaintiff evidence is ordered to be closed by court order. Now to come up on 30.10.2009 for DWs at own responsibility. List of witnesses be filed within seven days."

3. Though the remedy with the petitioner to challenge the order was by way of Revision, but the petitioner filed an application for recalling the order dated 9.10.2009. In the application moved for recalling the order in stead of pleading the grounds available to the petitioner for review of an order, the petitioner raised a new point wherein the stand was taken by the petitioner, that until and unless all modes of service are availed to secure the presence of marginal witnesses, the applicant/appellant cannot proceed under Sections 69 and 71 of the Indian Evidence Act.

4. Other ground on which, recall was sought was, that court was to record a specific satisfaction with respect to both the witnesses and in case it was held that the presence cannot be secured under any mode, then opportunity was required to be given to the plaintiff/petitioner to conclude the evidence in terms of Sections 69 and 71 of the Indian Evidence Act.

5. In order to appreciate the contention raised, it would be necessary to reproduce Sections 69 and 71 of the Evidence Act, which read as under:-

"69. Proof where no attesting witness found- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

71. Proof when attesting witness denies the execution- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

6. Reading of the impugned order vide which evidence of the petitioner was closed, would show, that the order has no relevance, whatsoever, with the provisions of Sections 69 and 71 of the Indian Evidence Act. It is not understood as to how, this application was made for recall of the order to avail the opportunity under Sections 69 and 71 of the Indian Evidence Act, as it was nobodys case, that the witnesses can not be found at the given address or were not available. The question was, as to whether the witnesses were evading service and coercive steps could not be taken for their presence.

7. Learned Trial court, however, was not justified in recording, that allowing of the application would amount to review, which was not permissible. This finding of learned trial court is perverse as the civil court can review the order, if the party satisfies the court, that the grounds of review fall under Order 47 Rule 1 of the Code (for short the Code).

8. The reading of the application shows, that points raised for recall, were not the grounds on which the petitioner could seek the review, as the remedy was to challenge the order in the superior court.

9. It may be noticed, that the learned court complied with