Closing of Evidence by order--Diet money but other expenses having been deposited to summon the witness—Thereafter, it was the duty of the court to enforce the attendance of any witness through coercive methods.

Mrs. Daya Chaudhary, J. (Oral):- The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 13.12.2016 (Annexure P-1) passed by the Civil Judge, (Sr. Division), Mansa whereby the evidence of the defendants-petitioners has been closed by Court order.

2. Briefly, the facts of the case, as made out in the present revision petition, are that the plaintiff-respondent filed a suit for declaration. After issuance of notice in the suit, petitioner-defendants filed written statement. Petitioners wanted to examine themselves as witnesses as well as two more witnesses, namely, Sh. Surinder Singh Manshahia (Notary Public) and Sh. Harbax Singh Mander (Handwriting Expert). He deposited diet money and other expenses to prove the attestation and execution of the affidavit dated 28.9.2011 of respondent-plaintiff to procure the presence of witness namely, Sh. Surinder Singh Manshahia who attested the alleged affidavit as Notary Public as well as other witness, namely, Sh. Harbax Singh Mander Handwriting Expert to prove his signatures on the affidavit. Aforesaid Handwriting Expert appeared in the Court to give his evidence and submitted his analysis report, whereas, other witness, namely, Sh. Surinder Singh Manshahia did not appear in the Court on 9.9.2016. Thereafter again, he was summoned on 6.12.2016 and case was adjourned for 13.12.2016. Last opportunity was granted by the trial Court to the defendants to conclude the evidence, failing which, its evidence was ordered to be closed by order. The said witness was not present and ultimately, evidence of the petitioners was closed vide order dated 13.12.2016 which has been challenged by way of filing the present revision petition.

3. Learned counsel for the petitioner submits that the approach of the trial Court was harsh and matter could have been heard on merits instead of closing the evidence of the party. Learned counsel also submits that interest of the petitioner has been prejudiced by passing the impugned order which has resulted into miscarriage of justice. Examination of said witness is necessary and presence of said witness namely Sh. Surinder Singh Manshahia could have been procured by the trial Court when said witness failed to appear before the trial Court as the petitioner had deposited diet money and other expenses also. Learned counsel also submits that the trial Court has failed to follow the settled law laid down in various judgments and it is the duty of the Court to enforce the attendance of the witness summoned by the party and if necessary, coercive methods could have been adopted.

4. Heard arguments of learned counsel for the petitioner and have also perused the impugned order and other zimni orders on record.

5. Without issuing notice to the other party as it will not only cause unnecessary delay but will have to bear the expenses of litigation in approaching this Court, the case is being decided.

6. Facts relating to filing of suit and thereafter closing of evidence by order of the Court on 13.12.2016 are not disputed. It is also not disputed that last opportunity was granted to the petitioner-defendants to conclude its entire evidence. The impugned order has been passed by mentioning that in spite of availing many opportunities, the defendants could not conclude its entire evidence and no plausible explanation has been put forth due to which the evidence of the petitioner-defendants was closed by order.

7. Similar issue was involved in case titled as Jagdev Singh Rathore vs. Punjab Agro Industries Corporation Limited, 2003 PLR 517 and Karnail Singh vs. M/s Gurdev Singh Balwant Singh, 2002 RCR (Civil) 261. In these cases also, the revision was filed against order of closure of evidence and it was allowed. It was held that “the attempt of the Court normally should be to decide the matter on merits rather than to close the evidence of the party at this stage of the suit unless the facts and circ