UDEY PAUL Vs. VINOD KUMAR

JUDGEMENT

(1.) THIS is a revision petition against the order dated 31.10.1998 passed by the trial court closing the evidence of defendant No. 3 by order of the Court.

(2.) NOTICE of motion was issued.

(3.) THE learned counsel appearing for the petitioner has submitted that the petitioner had already deposited the process fee in respect of the witnesses who are yet to be examined and non-service of the summons upon the witnesses could not result in the closure of the defendant's evidence by the Court. However, I find no force in this submission of the learned counsel for the petitioner. As referred to above, vide order dated 8.6.1998, the case was adjourned to 1.9.1998 for defendant's evidence being the last opportunity and the witnesses were to be examined by the defendant at his own responsibility. Subsequently, on 1.9.1998, the counsel for the defendant-petitioner had undertaken to produce the witnesses and in the event of non-production of the witnesses to close the evidence of the defendant. On the next date i.e. 22.9.1998, the Registration Clerk could not be served. However, with regard to other witnesses it was made clear by the trial Court that if the defendant wants to examine other witnesses, the same shall be examined subject to payment of Rs. 500/- as costs. Admittedly, the costs of Rs. 500/- had not been paid to the plaintiff nor the other witnesses were examined on 31.10.1998, on which date only the Head Registration Clerk was examined. Under these circumstances, the learned trial Court was perfectly justified in closing the evidence of defendant No. 3 by Court order and no fault could be found with the order dated 31.10.1998 passed by the trial Court while closing the evidence of defendant No. 3. The learned counsel appearing for the petitioner has further submitted that another defendant, namely, Chander Paul, had also filed an application for setting aside the ex parte proceedings taken against him and that the case was adjourned by the court for reply and consideration of the said application. It was submitted that once the case was being adjourned, the court should have allowed one opportunity to the petitioner to produce the remaining evidence. This argument raised before me by the learned counsel for the petitioner is mis-conceived. The court was to consider the conduct of defendant No. 3 regarding production of his witnesses. If defendants No. 3 had failed to examine the witnesses inspite of various opportunities, the trial Court was perfectly justified in closing the evidence of defendant No. 3. Merely because another defendant (who is the real brother of the present petitioner) had moved another application for setting aside the ex parte proceedings on the date when the evidence of defendant No. 3 was closed and the trial court had adjourned the case for reply consideration of the said application, it would not give a handle to the present petitioner to seek one more date to examine the remaining evidence.