PREMA Vs. JAGGO

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner alleging that in terms of the impugned order dated 25.10.2005 passed by the learned Civil Judge (Jr Divn) Kaithal the request for summoning the Record Keeper through the assistance of the Court has been declined.

(2.) THE petitioner has filed a suit for declaration and mandatory injunction against the respondents. The controversy in the suit is alleged to revolve around the execution of the sale deed dated 2.6.1994 by one Bala Ram son of Chinne (predecessor in interest of the defendants-respondents) said to be in favour of the petitioners. The original of the said sale deed is said to have been appended in a case filed by the plaintiffs-petitioners under Section 77 of the Registration Act, 1908. The plaintiffs-petitioners it is stated have duly deposited the process fee and expenses etc. for summoning the record through the Record Keeper. However, for reasons best known, the Record Keeper did not produce the records and this lead to the issuance of bailable warrants by the trial Court on 26.4.2005. Thereafter also, it is alleged that the Record Keeper did not appear in the Court on the adjourned date i.e. 6.9.205. However, while adjourning the case, the statement of the counsel for the plaintiff was recorded to the effect that the evidence in the case will be concluded on the next date of hearing without the assistance of the Court. It is thereafter that the counsel for the petitioner realized that the Record Keeper is an official witness and has to be summoned through the process of the Court.

(3.) AFTER considering the facts and circumstances of the case and the contention of the learned counsel for the petitioner, I am of the view that the present petition can be disposed of without notice to the other party and the other party can even otherwise be compensated with costs. Besides, summoning the other party would result in further delay of the proceedings. The other evidence of the plaintiff-petitioner is being produced and the case is fixed for 20.12.2005. It is only the Record Keeper of the office of Sub Registrar, Kaithal, who is to be summoned and examined through the process of the Court and no prejudice would be caused to the defendants-respondents in case the Record Keeper of the office of Sub Registrar is summoned and examined whereas the rights of the plaintiff-petitioner are likely to be affected in case he is not examined. In fact as already noticed the Record Keeper had been earlier summoned through bailable warrants but he did not appear. Therefore, it was in the circumstances of the case incumbent upon the learned trial Court to take coercive steps and action to secure the presence of the Record Keeper of the office of Sub Registrar Kaithal as he had failed to appear despite the issuance of bailable warrants. Even otherwise, it may appropriately be noticed that the summoning of witnesses is a procedural process in the trial of the case and, therefore, the petitioner is not liable to be non-suited on mere technicalities and to advance the cause of substantive justice, the Record Keeper of the office of Sub Registrar is liable to be summoned. In case he is summoned as a witness to prove the sale deed, no prejudice would be caused to the respondents.