PASSA Vs. NANAK CHAND

JUDGEMENT

(1.) Petitioner filed a suit for the cancellation of the mortgage deed in January, 1973. Petitioner appeared as his own witness on 3rd March, 1977. The case was adjourned for his cross-examination to Ist April, 1977. He did not appear even on that date. Then the case was further adjourned by the learned trial Court to 13th May, 1977. This adjournment was granted subject to the payment of costs. On this date also, the plaintiff did not appear nor his counsel gave any reason for his absence. However, on counsel's request and undertaking that he will produce the plaintiff on the next date and that no further opportunity was to be allowed, further adjournment was given subject to the payment of costs and the case was adjourned to 22nd July, 1977 and it was clarified by the learned trial Court that no further opportunity shall be given to the plaintiff. The plaintiff, however, did not appear even on 22nd July, 1977. His counsel also did not give any reason for his absence. No costs were even paid. It was under these circumstances that the learned trial Court ordered that the examination-in-chief of the plaintiff will not be taken into consideration as the defendants did not have the opportunity to cross examine him.

(2.) This order was not challenged by way of revision or appeal. However, the plaintiff filed an application under Order XVIII rule 1 read with Section 151 Civil Procedure Code for allowing the plaintiff to appear as a witness and giving an opportunity to the defendants to cross-examine him and to set aside the earlier of the Court vide which his examination-in-chief was struck off from the record. This aplication was dismissed by the learned Sub Judge on 16th December, 1977. It is against this order that the present revision petition has been filed. Mr. Goel, the learned counsel for the petitioner has contended that one more opportunity may be given for the purpose. He contended that the petitioner became insane but he failed to give date when he became insane. Curiously enough no application for the appointment of a guardian of petitioner was made as required under rule 3, Order 32, Civil Procedure Code, or any such thing is mentioned in the grounds of revision. Mr. Goel says that he came to know of it only last week but even then no such application is made. Hence I find that this is a frivolous plea taken by the counsel that the plaintiff has become insane. The learned Sub Judge has exhaustively dealt with the matter and given cogent reasons and has also referred to certain provisions of the Code of Civil Procedure. The reference is made to Order XVIII Rule 1 of the Code of Civil Procedure and it is rightly observed by the learned Sub Judge that no such application is competent under that rule, as that Rule deals only with the right of the plaintiff to begin his evidence. But in the instant case, it was only adjourned for the cross examination of the plaintiff and his other evidence had finished. Reference was also made to Order XVIII Rule 17A of the Code of Civil Procedure and the learned Sub Judge has rightly held that the application is also not competent under this Rule as this Rule deals with such cases in which some evidence was not within the knowledge of the party or even after the exercise of due diligence could not be produced by him at the time when that party was to lead the evidence. Faced with this situation, the counsel for the petitioner submitted before the trial Court that the application may be treated under Section 151 of the Code of Civil Procedure, and the learned Sub Judge has given cogent reasons for not entertaining the application under this provision also. The order striking off the plaintiff's examination in chief from the record was not challenged by way of revision. Such an order could be challenged by way of revision. It has been rightly held by the learned Sub Judge that since he did not challenge the order by way of revision, therefore, the application under Section 151 Civil Procedure Code is not competent. Applications under Section 151 of the Code of Civil Procedure are competent only where there is no specific provision and where there is no other remedy. Civil Procedure Code has specific provisions regarding the leading of evidence, defence evidence and other contingencies and then there is a provision of revision against interlocutory orders. Hence I am in perfect agreement with the reasoning adopted by the learned Sub Judge that the application was incompetent. Many opportunities were given to the plaintiff for his cross examination but he did not avail of any opportunity and his counsel did not state any reason as to why the plaintiff was absent. As stated earlier, the learned Sub Judge has passed a very reasonable and cogent order. In fact in a situation like this, no other order was possible.

(3.) For the reasons recorded above, I find no ground for interfering with the well reasoned order recorded by the trial Court. The petition is dismissed with costs.