SURINDER NATH AHLUWALIA Vs. RAJ KUMAR AND ANR.

JUDGEMENT

(1.) This is a Defendant's revision petition under Sec. 115 of the Code of Criminal Procedure against an order of the learned Senior Subordinate Judge, Kangra at Dharamsala, closing the Defendant's oral evidence in a suit for declaration.

(2.) The Defendant Surinder Nath was examined as a witness on June 1, 1968, and his cross -examination remained. The Defendant, it is said, was available for cross -examination on subsequent dates but because certain files were not available the case was adjourned on those dates. Finally, after the files were received, the case was fixed for the cross -examination of the Defendant on March 25, 1971. Again the case was adjourned on various dates, and it is alleged that the adjournments were due to no fault of the Defendant. The case was fixed for May 2, 1973, and on that date the Defendant was not able to appear, it is alleged, on account of illness. The Senior Subordinate Judge, who was trying the suit, made an order declining to adjourn the case and closed the Defendant's oral evidence. This order is assailed by the present revision petition.

(3.) Learned Counsel for the Defendant contends that the learned Senior Subordinate Judge could only have proceeded under Order 17, Rule 3 of the Code of Criminal Procedure and should have disposed of the suit forthwith. The contention cannot be accepted. The impugned order shows that only the oral evidence was closed and upon the request of the Defendant time was allowed to tender certain documents in evidence. Besides, the jurisdiction conferred on the court under Order 17, Rule 3 is a discretionary jurisdiction. It was open to the learned Senior Subordinate Judge to allow time to the Defendant to file his documentary evidence. A converse case was considered by the Calcutta High Court in Raja Bala Dasi v/s. Jai Chand Lal Baru : A.I.R. 1930 Cal. 251 . On the date fixed for the hearing of the case the Plaintiff was ready. The Defendant prayed for time and produced a medical certificate in support of the allegation that he was ill. The Subordinate Judge was of opinion that the Defendant was guilty of repeated laches on various grounds and rejected the Defendant's petition but at the same time allowed five days time to the Defendant to produce his witness. The Plaintiff's evidence had been taken on that very day Instead of waiting for five days time granted by him to the Defendant to produce his witness the Subordinate Judge made an ex -parte decree on that very day. On appeal by the Defendant the Calcutta High Court held that the Subordinate Judge should have waited for the five days time allowed by him to the Defendant and should not have proceeded to dispose of the suit forthwith.