G.R. Khan Vs. Lakshmi Narain - Court Judgment

Excerpt:
in the instant case, the petitioner in respect of a petition filed under order 17 rules 2 and 3 of the civil procedure code, 1908, was denied adjournment and the court, in this regard had closed the evidence - the court decision to do so was on the ground that the witnesses had failed to bring in record - it was ruled that witness would be of no use - the closing of witnesses would not cause injustice to the petitioner - it was ruled that the order could not be assailed under section 115 of the code - accordingly, the revision petition filed was dismissed - - with regard to the other witness the course open to the court was either to issue a notice of contempt under order 16 civil procedure code .or to issue a warrant of arrest, but the court failed to adopt any of these courses. closing of the evidence of these witnesses would occasion no failure of justice or irreperable injury to the petitioner;m.l. jain, j. (1) the facts of this case are that the plaintiff- respondent instituted a suit on june 2, 1972 for recovery of rent to the tune of rs. 3,600 and ejectment of the petitioner, it appears, from a vacant plot of land. the petitioner took up the plea that it was not he but it was the western engineering co. (of which the petitioner is a partner) which took the premises on rent and applied to the director of industries for registration of the factory for the manufacture of refrigerator parts. it was further pleaded that it was not a vacant plot of land but constructed premises were taken on rent and thereforee the suit was barred and a petition under the delhi rent control act for eviction should have been filed. on march 28, 1973 issues were framed. the plaintiff closed his evidence on november 18, 1977. february 9, 1978 was the date fixed for the evidence of the defendant-petitioner. the petitioner submitted a list of 11 witnesses. by october 6, 1978 the petitioner had examined all the witnesses except three and the petitioner himself. on october 6, 1978, the case was adjourned to january 19, 1979. on january, 19, 1979 the court recorded that no witness was present and adjourned the case to march 27, 1979, though two out of the three witnesses had been served. on march 27, 1979 out of the two witnesses who had been served, one witness g.d. varshney from the office of the director of industries appeared but did not bring the record and bids evidence was closed. the other witness does not seem to have appeared. the learned lower court by its impugned order closed the evidence of the defendant-petitioner and adjourned the case to march 28, 1979 for the statement of the defendant. hence, this revision. (2) the learned counsel for the petitioner submit that when a witness had not brought the record the court could not close the evidence and should have instead directed the witness to bring the record unless the record was irretrievably lost. with regard to the other witness the course open to the court was either to issue a notice of contempt under order 16 civil procedure code . or to issue a warrant of arrest, but the court failed to adopt any of these courses. (3) i have considered over these arguments. the learned counsel for the petitioner does not deny that no rent has been paid by the petitioner nor by the partnership inspire of a direction by this court. the two witnesses mentioned above were called for the purpose of proving that the premises, when these were rented by the western engg. co. were a building and not a vacant plot. these witnesses were to produce the plan filed by the partnership with the director of industries showing that the premises stood constructed on the date of application for registration. if the impugned order had been made in favor of the petitioner, it would not have finally disposed of the suit. since the witnesses are not relevant and the plan filed by the petitioner being his own admission would prove nothing against the respondent. closing of the evidence of these witnesses would occasion no failure of justice or irreperable injury to the petitioner; see the proviso to section 115(1) ofthe code of civil procedure. the revision petition is dismissed. no costs.