Case Note & Summary
The petitioner/plaintiff, Wasudeo Tathe, filed a writ petition challenging two orders passed by the Civil Judge Junior Division, Patur, in a civil suit. The first order dated 23.1.2014 rejected the plaintiff's application (Exh.32) for issuance of summons to witness Mahadeo Ghonge. The second order dated 30.1.2014 forfeited the plaintiff's right to adduce evidence (order below Exh.1). The plaintiff had filed a suit against the respondents/defendants, and the witness Ghonge had filed an affidavit in support of the plaintiff on 10.1.2014. The witness was to attend court for cross-examination on 16.1.2014 but remained absent due to sudden sickness of his grandson. The plaintiff applied for adjournment, but the trial court rejected the summons application and forfeited the right to lead evidence. The High Court observed that the trial court acted arbitrarily and without giving sufficient opportunity to the plaintiff. The court noted that the witness had a valid reason for absence and the plaintiff had sought adjournment. The High Court allowed the petition, set aside both impugned orders, and directed the trial court to issue summons to the witness and restore the plaintiff's right to lead evidence. The court also directed the trial court to expedite the suit and dispose it of within six months.
Headnote
A) Civil Procedure - Summons to Witness - Rejection of Application - The trial court rejected the plaintiff's application for issuance of summons to witness Mahadeo Ghonge on the ground that the witness had not appeared earlier despite filing an affidavit. The High Court held that the rejection was arbitrary as the witness had a valid reason for absence (sudden sickness of grandson) and the plaintiff had sought adjournment. The court directed the trial court to issue summons to the witness and restore the plaintiff's right to lead evidence. (Paras 2-6)
B) Civil Procedure - Right to Adduce Evidence - Forfeiture - The trial court forfeited the plaintiff's right to adduce evidence by order below Exh.1. The High Court held that forfeiture of such a fundamental right without giving sufficient opportunity is arbitrary and violative of principles of natural justice. The court set aside the order and directed the trial court to allow the plaintiff to lead evidence. (Paras 2-6)
Issue of Consideration
Whether the trial court was justified in rejecting the application for issuance of summons to a witness and forfeiting the plaintiff's right to adduce evidence without providing adequate opportunity.
Final Decision
The High Court allowed the writ petition, set aside the impugned orders dated 23.1.2014 and 30.1.2014, and directed the trial court to issue summons to witness Mahadeo Ghonge and restore the plaintiff's right to lead evidence. The trial court was also directed to expedite the suit and dispose it of within six months.
Law Points
- Civil Procedure
- Summons to Witness
- Right to Adduce Evidence
- Forfeiture of Right
- Opportunity of Hearing
- Arbitrary Exercise of Power
Case Details
2014 LawText (BOM) (07) 134
WRIT PETITION NO.2162 OF 2014
Shri A.J.Thakkar for Petitioner, Shri A.M.Tirukh for Respondents
Pramod s/o Madhukar Bhaltilak and Madhukar s/o Vitthal Bhaltilak
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Nature of Litigation
Writ petition challenging orders of Civil Judge Junior Division rejecting application for issuance of summons to witness and forfeiting plaintiff's right to adduce evidence.
Remedy Sought
Petitioner/plaintiff sought setting aside of orders dated 23.1.2014 and 30.1.2014 and direction to issue summons to witness and restore right to lead evidence.
Filing Reason
Trial court rejected application for summons to witness Mahadeo Ghonge and forfeited plaintiff's right to adduce evidence without giving sufficient opportunity.
Previous Decisions
Orders dated 23.1.2014 (rejecting summons application below Exh.32) and 30.1.2014 (forfeiting right to adduce evidence below Exh.1) passed by Civil Judge Junior Division, Patur.
Issues
Whether the trial court was justified in rejecting the application for issuance of summons to witness Mahadeo Ghonge?
Whether the trial court was justified in forfeiting the plaintiff's right to adduce evidence?
Submissions/Arguments
Petitioner argued that the witness had a valid reason for absence (sudden sickness of grandson) and the plaintiff had applied for adjournment, but the trial court arbitrarily rejected the summons application and forfeited the right to lead evidence.
Respondents opposed the petition, but no specific arguments are recorded in the judgment.
Ratio Decidendi
The trial court acted arbitrarily in rejecting the application for issuance of summons to a witness and forfeiting the plaintiff's right to adduce evidence without providing sufficient opportunity. The right to lead evidence is a fundamental right in civil proceedings, and forfeiture thereof must be preceded by adequate opportunity and consideration of valid reasons for absence.
Judgment Excerpts
By this petition the petitioner/plaintiff challenges orders dated 23.1.2014 and 30.1.2014, passed by the learned Civil Judge Junior Division, Patur, whereby the application filed by the petitioner/plaintiff for issuance of summons to witness Shri Mahadeo Ghonge was rejected by order passed below Exh.32 and right to adduce evidence of the petitioner/plaintiff was forfeited by order passed below Exh.1.
The grievance of the petitioner/plaintiff is that witness on behalf of the petitioner/plaintiff named Shri Mahadev Ghonge filed his affidavit in support of the petitioner/plaintiff on 10.1.2014 and he was to attend the Court for cross-examination on 16.1.2014, but witness Shri Ghonge remained absent on the ground that there was sudden sickness of his grand-son and the petitioner/plaintiff had applied for adjournment.
Procedural History
The petitioner/plaintiff filed a civil suit before the Civil Judge Junior Division, Patur. On 10.1.2014, witness Mahadeo Ghonge filed an affidavit in support of the plaintiff. The witness was to attend for cross-examination on 16.1.2014 but remained absent due to sudden sickness of his grandson. The plaintiff applied for adjournment. The trial court rejected the application for issuance of summons to the witness on 23.1.2014 (Exh.32) and forfeited the plaintiff's right to adduce evidence on 30.1.2014 (Exh.1). The plaintiff then filed the present writ petition challenging these orders.
Acts & Sections
- Code of Civil Procedure, 1908: Order 16, Order 17
