PRABHU DAYAL Vs. GIRRAJ KISHORE

JUDGEMENT

(1.) THIS is a civil second appeal in a suit for grant of perpetual injunction and for possession of the land of the chowk which according to the plaintiff-appellant was joint.

(2.) THE main grievance of the plaintiff-appellant is that the trial Court had wrongly closed his evidence. In order to appreciate this contention, it is necessary to refer to the following facts: In this case, the issues were framed on 15-1-1958 and the case was adjourned to 17-3-58 for the evidence of the parties. On 20-1-1958 the plaintiff applied that the summonses be issued to the six witnesses referred to in that application. He also deposited Rs. 25/- for the expenses of the witnesses. On 17-3-1958 an application was filed by the defendant-respondents that the plaintiff had not filed a list of witnesses as required by Order 16, Rule 1 (i) of the Civil procedure Code and the evidence of the plaintiff be ordered to be closed. On this, the plaintiff filed an application that eight witnesses referred to in that application be examined on his behalf (see page 125d of the record ). Another application was filed that the list of the witnesses filed on 20-1-58 may be treated as one filed under Order 16, Rule 1 (i), C. P. C, Yet another application was filed that at least prabhudayal plaintiff who was present in the Court may be examined. All the applications filed by the plaintiff were rejected by the trial Court. The Court held that as no application giving the list of the witnesses had been filed under Order 16, Rule l (i) within 30 days from the settlement of issues, the plaintiff could not examine any of the witnesses. The other application for treating the application for summoning the witnesses as an application giving the list of the witnesses was rejected on the ground that that application was under Order 16, Rule l (ii ). It was argued before the learned Judge of the trial Court that the Court may exercise its inherent power under Section 151, C. P. C. but the Court held that as there was specific provision in Order 16, rule l (i), C. P. C. the inherent power could not be invoked contrary to it. The third application for producing Prabhu Dayal plaintiff as a witness was rejected on the ground that his name did not find mention even amongst the witnesses sought to be summoned. The defendants had also not filed the list of the witnesses. It was observed that giving an opportunity to the plaintiff to produce his evidence will be to the prejudice of the defendants as they had not filed the list of witnesses. The evidence of the parties was, therefore, ordered to be closed and the case was fixed for arguments. The case was argued and it was the good fortune of the plaintiff that it was decreed on the strength of the document Ex. 1 already on the record. The trial Court relied on the sale deed Ex. 1 produced by the plaintiff which was a registered document but was not admitted by the defendants.

(3.) DEFENDANTS went in appeal to the Court of the District Judge, Bharatpur. The learned District Judge held that Ex. 1 was not proved and as such the plaintiff could not rely upon it. Taking this view of the matter, he accepted the appeal and dismissed the suit of the plaintiff. He also did not remand the case for permitting the plaintiff to lead evidence. Hence the second appeal.