IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R. NO.868 OF 2009 (O&M)
DATE OF ORDER: 17.2.2009
Gurminder Pal Singh
....Petitioner(s)
Versus
Paramjit Singh and another
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. N.S. Sodhi, Advocate for the petitioner.
JASWANT SINGH, J. (ORAL)
Petitioner-plaintiff has filed this petition under Article 227 of
the Constitution of India challenging order dated 22.1.2009 (Annexure P.1)
passed by the learned Additional Civil Judge(Sr.Division), Fazilka
On 27.3.2002, petitioner-plaintiff had filed a suit for
declaration to the effect that Rapat No.350 dated 20.3.2002 prepared by
Kanungo Circle Ghallu was null, void & illegal; with consequential relief of
permanent injunction restraining the defendants from implementation of any
proceedings on the basis of the said Rapat No.350 dated 20.3.2002. After
the issues were framed on 5.10.2002 on the basis of pleadings, petitioner-
plaintiff led their evidence.
It is stated that the entire evidence of the petitioner-plaintiff had
been led and only one witness i.e Record Keeper from the office of District
Development & Panchayat Officer(for short “D.D.P.O”), Ferozepur-
respondent No.2 remained to be examined along with record. It is further
stated that the diet money and process fee for his presence had been
deposited. On 16.9.2008, a report was received that “Summon issued
against DW, Naib Nazar, had been received back with the report of refusal”.
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Accordingly, learned trial Court ordered his summoning through bailable
warrant in the sum of Rs.2000/- with one surety in the like amount for
25.10.2008.
On 25.10.2008, no report was received regarding the execution
of the bailable warrant, therefore, fresh bailable warrant for 4.12.2008 were
issued. It was also ordered that the remaining Pws be produced at own
responsibility of the petitioner-plaintiff. On 4.12.2008, it appears, there was
still no report available regarding the service of the said witness. Learned
trial Court issued fresh summons for the said witness for 12.1.2009 with
ordinary means. Learned trial Court further directed the petitioner-plaintiff
to conclude his entire evidence on the date fixed subject to last opportunity.
On 12.1.2009, the position remained the same and the case was adjourned to
22.1.2009 subject to last opportunity for concluding the evidence. On
22.1.2009, impugned orders (Annexure P.1) were passed and for non-
production of the PWs, the evidence of the plaintiff was closed by order.
Hence, the present revision petition.
After hearing learned counsel for the petitioner and perusing
the various zimni orders reproduced in para 4 of the petition, this Court is of
the opinion that the approach adopted by the learned trial Court for securing
the presence of the said witness i.e Record Keeper of the office of D.D.P.O,
Ferozepur-respondent No.2, leaves much to be desired.
It is apparent from the orders dated 16.9.2008 and 25.10.2008
that on the refusal to receive the summons, bailable warrants had been
issued for securing the presence of the said witness and no report on the
same had been received. On 4.12.2008, learned trial Court, it appears, for
the explicit reasons, issued fresh summons by ordinary means without
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caring to check about the report of the earlier afore-stated orders.
Learned counsel for the petitioner has argued that no other
evidence is required to be produced except the Record Keeper of the office
of respondent No.2 for proving the veracity of the Rapat No.350 dated
20.3.2002.
In the opinion of this Court, production of the record is
absolutely necessary for the proper determination of the dispute between the
parties as it goes to the root of the matter.
In the facts of the case, petition is allowed and impugned order
dated 22.1.2009 closing the evidence of the petitioner-plaintiff is set aside.
Learned trial Court is directed to grant one effective opportunity to the
petitioner-plaintiff to examine the Record Keeper on a date to be fixed by it
subject to payment of Rs.3000/- as costs to be paid to respondent No.1.
This order is being passed without issuing notice to the
respondents as it would result in unnecessarily delay in the matter and
expenses for the other party. In any case, respondent No.1 is being
compensated by way of costs.
February 17, 2009 ( JASWANT SINGH ) manoj JUDGE