BAKHTAWAR KHAN Vs. NOOR MOHAMAD

JUDGEMENT

(1.) These are two revisions filed by the defendant Bakhtawar Khan against the two orders of the learned Addl. Munsif Magistrate No. 1, Jodhpur, dated 19-10-1985 and 14-12-1985 respectively in the same suit and as the matters, involved in these two revisions are connected, they are being disposed of by a common order.

(2.) The plaintiff's suit for ejectment against the present petitioner was pending for the defendant's evidence on 19-10-1985. The plaintiff's evidence had already been over on 24-1-1985. It appears that the defendant had not filed any list of witnesses and, therefore, he was not entitled to get any witness summoned by the Court. One of the witnesses whom the defendant wanted to examine was Shri Narsinghdass Moondra but he was not present in Court on 19-10-1985 and an application under O. XXVI Rule 1, C.P.C. was filed supported by the affidavit of the learned counsel for the defendant that the witness Shri Narsinghdass had suffered a fracture in his thigh and was unable to come to the Court and, therefore, a Commission may be issued to examine him. This application was opposed by the plaintiff and the plaintiff had filed an affidavit to the effect that the witness had suffered a fracture about 1-1/2 months back. He further averred that merely because the witness was about 73 years old and had suffered a fracture in his thigh he cannot be deemed to be unable to attend the Court and that he could be brought in a taxi or some other conveyance. The Court relying on this averment of the plaintiff and also on the fact that the medical certificate had not been produced, dismissed the application for examining the said witness on Commission. It, however, granted an opportunity to the defendant to produce his evidence by keeping the witness ready in Court on 16-11-1985. On 16-11-1985, the learned Munsif was on leave and, therefore, the case was adjourned to 14-12-1985.

(3.) On 14-12-1985, the defendant examined himself but his witness was not present and, he urged that the as Shri Narsinghdass could not be produced, he may be allowed to examine one Shri Ajeet Johar, Advocate in his place in order to prove his attestation on the sale deed executed by Narsinghdass in favour of the defendant. This prayer was also disallowed by the Court by its order dated 14-12-1985 on the ground that Shri Ajeet Johar was not present in the Court and no cause was shown why he was not present. Aggrieved of these orders the defendant has come up in revisions.