LABH KAUR Vs. GAJJAN SINGH

JUDGEMENT

(1.) This appeal has been filed by the defendants against the order of the Additional District Judge, Amritsar, dated January 4, 1975. Briefly the facts are that the plaintiff instituted a suit for declaration in the trial Court. It was dismissed. He went up in appeal before the Additional District Judge, who accepted the same and remanded the case to the trial Court for fresh decision. The defendants have come up in appeal against the order of the Additional District Judge to this Court.

(2.) The only question that arises for determination in the present case is whether the order of remand is proper or not. It is contended by the learned counsel for the appellants that the trial Court was justified in rejecting the prayer of the counsel for the plaintiff for recording the statement of Hardip Singh, who was present in the Court. In support of his contention he placed reliance on Natha Singh and others v. The Financial Commissioner, Taxation, Punjab and others, 1976 AIR(SC) 1053 and Maghar Singh and another v. Kewal Ram, 1972 PunLJ 323

(3.) I regret in my inability to accept the aforesaid contention. It is not disputed that the case of the plaintiff was fixed for his evidence on December 27, 1972 when his witness was present. It is an established principle of law that if the witness whose name is not mentioned in the list, is present in the Court and the evidence of the party is continuing, the Court should record the statement. In my view the trial Court illegally refused to record the statement of the witness of the plaintiff. In view of the aforesaid circumstances, the first appellate Court was right in accepting the appeal and remanding the case to the trial Court for recording the statement of the witness and deciding the matter fresh. The two authorities, which have been cited by the learned counsel are under Order 41 Rule 27, Civil Procedure Code. The ratio in the aforesaid cases are not applicable to the facts of the present case. In these circumstances the appeal is liable to be dismissed.