When the witness had sworn affidavit as
evidence in the Court, it was his duty to depose as to facts of
the case personally known to him and the trial Court was
empowered to compel attendance of such reluctant witness
who had sworn and filed affidavit of examination-in-chief in
the Court. Since witness did not turn up to depose in the
case on appointed date of hearing for to be cross examined
with reference to the affidavit solemnly affirmed/sworn and
placed on the record of the trial Court. Either of the parties
by adopting evasive or evil/dishonest tactics i.e. not pressing
the affidavit filed, or otherwise trying to pollute pure stream
of justice by influencing the witness, cannot be allowed to
avoid the trial according to law. It is the duty of the trial
Judge to ensure that in the larger interest of justice the case
must be taken to its logical end by just and legal conclusion.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2162 OF 2014
Wasudeo s/o Amruta Tathe,
:: versus ::
Pramod s/o Madhukar Bhaltilak,
CORAM : A. P. BHANGALE, J.
DATE
: JULY 4, 2014.
Citation; 2015(1) MHLJ 76
1.
Rule.
Rule made returnable forthwith.
Heard the
matter by consent of learned Counsel appearing for both the
parties.
2.
By this petition the petitioner/plaintiff challenges
Judge Junior Division, Patur, whereby the
learned Civil
orders dated 23.1.2014 and 30.1.2014, passed by 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
3. The respondents/defendants have filed their caveat
Exh.1.
The grievance of the petitioner/plaintiff is that witness
application to oppose this petition.
4.
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-
on
16.1.2014,
but
witness
Shri
Ghonge
examination
Judgment
remained absent on the ground that there was sudden
sickness of his grand-son and the petitioner/plaintiff had
It
is
alleged
that
the
5.
applied for adjournment.
respondents/defendants
influenced the witness not to depose in pending Regular
Civil Suit No.25 of 2012 under threat.
Under these
circumstances, the petitioner/plaintiff had filed praecipe
dated 23.1.2014 informing the fact, which came to the
notice of the petitioner/plaintiff; to the Presiding Officer of
the Court. Learned trial Judge was requested to summon the
witness concerned for the purpose of cross examination.
6.
In the facts and circumstances of the case, learned
Counsel appearing for the petitioner/plaintiff submits that in
view of Order XIX Rule 2 of the Civil Procedure Code, the trial
Court ought to have used its powers to order attendance of
the witness who had sworn affidavit in evidence but did not
evidence when required.
turn up for the purpose of cross examination or further
The trial Court can compel
attendance of such absent or reluctant witness in the larger
interest
of
justice
(unless
the
witness
is
specifically
exempted from the personal appearance in the Court) on
the day of hearing when the Court directed him to attend
the trial. For this reason, the petitioner/plaintiff had applied
for issuance of witness summons to Shri Ghonge to be
examined as witness in the Court with reference to his
affidavit sworn in evidence before the trial Court.
7.
Learned
trial
Judge
while
passing
order
below
application Exh.32, appears to have misdirected himself and
ignored the provisions under Order XIX Rule 2 of the Code of
Civil Procedure.
When the witness had sworn affidavit as
evidence in the Court, it was his duty to depose as to facts of
the case personally known to him and the trial Court was
empowered to compel attendance of such reluctant witness
who had sworn and filed affidavit of examination-in-chief in
the Court. Since witness did not turn up to depose in the
case on appointed date of hearing for to be cross examined
with reference to the affidavit solemnly affirmed/sworn and
placed on the record of the trial Court. Either of the parties
by adopting evasive or evil/dishonest tactics i.e. not pressing
the affidavit filed, or otherwise trying to pollute pure stream
of justice by influencing the witness, cannot be allowed to
avoid the trial according to law. It is the duty of the trial
Judge to ensure that in the larger interest of justice the case
must be taken to its logical end by just and legal conclusion.
8.
In that view of the matter, the impugned orders must
be quashed and set aside.
9.
In the result,
the writ petition is allowed.
The
impugned order rejecting application Exh.32 is quashed and
set aside including the order of forfeiture of the right of the
petitioner/plaintiff to lead the evidence. Learned trial Judge
is directed to pass appropriate orders accoding to law so as
to compel the attendance of the witness and to proceed with
the recording the evidence. The parties to appear before the
trial Court on the date fixed for hearing by the trial Court.
Thus, the writ petition is allowed accordingly. Rule is
JUDGE
made absolute in above terms. No order as to costs.
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