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Udhav Lal v. Lala And Others - WRIT - C No. 23931 of 2006 [2006] RD-AH 9085 (5 May 2006)


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Court No. 23

Civil Misc. Writ Petition No. 23931of 2006

Udhav Lal  Vs. Lala and others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

By the impugned orders of the courts below the petitioner-plaintiff's application under Order 16 Rule 1, 2 and 3 C.P.C. has been rejected and the  prayer for summoning the witnesses for leading the evidence for the petitioner before the trial court has been rejected.

Learned counsel for the petitioner contends that under the provisions of Order 16 Rule 1, 2 and 3 C.P.C. if there is prayer from a party before the trial court to summon the witnesses given in the list, his prayer should ordinarily be allowed and the courts below have without cogent and justifiable reasons, rejected it. The petitioner was arrayed as plaintiff in the suit only in the year 2004 and when his witnesses' name in the list  (Annexure No. 4) did not find mention according to his prayer for presenting themselves for evidence before the court, he moved an application. The courts below have rejected the petitioner's prayer only on the ground that the case is old and the application had been presented only to delay the disposal of the suit, in-spite of orders of the District Judge as well as this court for expeditious hearing.

From the facts and circumstances as appearing in the case and as demonstrated from the documents filed on record, it is evident that the plaintiff-petitioner has been arrayed as plaintiff in the suit in the year 2004. Thus, if the status of the petitioner has been changed from defendant to plaintiff he has to be afforded opportunity to discharge his burden as plaintiff in the suit by leading necessary evidence before the trial court. It was for that purpose only that the petitioner moved the application, which has been rejected by the courts below. This aspect of the matter has not been touched by either of the two courts. The order of the revisional court holding that the revision is not maintainable against the impugned order which is not one covered in the category of 'case decided', appears to be wholly misconceived. The meaning of 'case decided' as has been explained in several cases decided by this court as well as by the apex court, is that it is not that the suit or the case which is required to be decided by the order so challenged in a revision. The meaning of the 'case decided' is that a particular matter in which the order has been passed, the order should decide that matter. Since the order challenged before the revisional court in the present matter was an order rejecting the petitioner's application under Order 16 Rule 1, 2 and 3 C.P.C. the matter relating to that prayer actually stood decided by the trial court and the revision against the same was competent. The District Judge has passed a wholly misconceived and perverse order and has illegally dismissed the revision as not maintainable.

In the facts and circumstances, it would be wholly justifiable to afford an opportunity to the petitioner-plaintiff to lead his evidence for which purpose his request made before the trial court should have been allowed. The trial court committed gross error in rejecting that application. In this view of the matter, this petition is allowed and the impugned orders of the courts below are hereby quashed. The application of the petitioner for summoning the witnesses under Order 16 C.P.C. is also allowed and the trial court will issue summons to those witnesses listed in petitioner's application (Annexure No. 4) directing the petitioner-plaintiff himself to receive the summons and serve upon the witnesses and file an affidavit of service before the court within a period of one week from the date of issue of summons. In case the survey report submitted by the witness-Ramesh Chandra, the survey commissioner, has been rejected by the court, the trial court would not summon him. The evidence of the listed witnesses shall be recorded latest within 15 days from the date of issue of such summons and the date for recording evidence shall be so adjusted by the trial court. After the evidence has been recorded the final disposal of the suit after hearing and considering the arguments of the parties shall be positively done within a further period of 15 days only and not beyond that.




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