NANKANI KISHAN Vs. M SHANKAR NARAYANA

JUDGEMENT

(1.) The petitioner is the plaintiff in OS No.39 of 1989 on the file of the Court of Subordinate Judge, Khammam. He filed a suit for recovery of an amount of Rs. 34,400.00 based on a promissory note allegedly executed by first respondent. According to the petitioner, the first respondent obtained a loan of Rs. 20,000.00from the second respondent on 5-4-1986. He did not pay the amount as agreed and on 15-3-1989 the second respondent endorsed suit promissory note in favour of the plaintiff under Ex. A2 for a sum of Rs. 30,000.00 having received the said amount. The petitioner examined himself as PW1 and one of the attesting witnesses as PW2.

(2.) First respondent, promissor opposed the suit claim. It appears that second respondent who endorsed the suit promissory note in favour of the petitioner remained ex parte. Therefore, after closure of evidence by both parties, the petitioner filed an application to summon second respondent as witness on behalf of the plaintiff. Another IA was also filed for reopening the suit. The latter IA., being IA No. 549 of 1997 was dismissed by the trial Court on the ground that the petitioner did not utilise the opportunity to examine all his witnesses when the trial was going on and as the petitioner's suit is pending for more than eight years the suit cannot be reopened.

(3.) In this civil revision petition the learned Counsel for the petitioner Sri P. Vinod Kumar submits that the order of the trial Court suffers from grave error which requires interference by this Court. Learned Counsel for the first respondent Sri P. Visweswara Rao, submits that the application filed by the petitioner for reopening the suit and summoning the second respondent is belated one. He also submits that as required under Order XVI, Rule 1 of Code of Civil Procedure, 1908 (CPC, for brevity) parties to the suit have to submit the list of witnesses to the Court and in the absence of such list, the petitioner cannot be allowed to seek reopening of the suit and also examine witnesses. The learned Counsel also relied on the judgment of Rajasthan High Court in Bakhtawar Khan v. Noor Mohammed, AIR 1986 Raj. 167.