WALI AKHOON Vs. SABI

JUDGEMENT

(1.) BY this revision petition, order passed by Sub -Judge, Baramulla dated 31 -07 -1997 has been put to challenge.

(2.) THE facts in brief which have given rise to the present petition are that in a suit No. 78 of 06 -06 -1987 pending disposal in the trial court, the petitioner before me after having deposited the expenses of the witnesses which he wanted to examined in the matter and also getting almost all the witnesses examined except one Ghulam Ahmad Malik who could not be procured and the case was still in the process of recording of evidence of the plaintiff, when the plaintiff approached the trial court that instead of Ghulam Ahmad Malik who is not traceable or who could not be located, he wants to produce the person of one Mohd Sultan Malik. The reason given by the petitioner in the trial court is that this Mohammad Sultan Malik could not be cited or produced as a witness in the matter as due to militancy, he was outside the State and so on.

(3.) THE trial court after having heard the other party and seen the domineer of the petitioner has declined to allow the petitioner to produce this Mohd Sultan Malik as witness in the matter at his own risk and cost, when of course his evidence was still being recorded and the person of the petitioner/plaintiff had yet to get his statement recorded. The learned trial Judge after having heard the learned counsel for the parties had taken recourse to the provisions of Order 18 Rule 17(a) of the Civil P.C. and thereby as per averments of Mr. Qayoom has landed into an error of law and fact. The error of law on the count that the provisions of Order 16 Rule 1 of CPC do envisage that after the issues are framed, on or before such date, as the court may appoint for recording of the evidence, not later than fifteen days, parties may file a list of witnesses whom they want to produce/documents which they want to obtain and summon the person of such witnesses before the court. Furthermore Rule 2 of Order 16 of Civil P.C. envisages that: