Law: Civil Procedure Code (V of 1908)

Section: O. XVI, rr. 10(3) and 1

(a) Civil Procedure Code (V of 1908)-----   -----O. XVI, rr. 10(3) and 1-Witnesses summoned through Court failing to attend Court on adjourned hearing-Court not bound to issue warrant against such witnesses unless party so desires.   (b) Civil Procedure Code (V of 1908)-------   ----O. XVI, r. 10(3) & O. VII, r. 3-Witnesses summoned through Court failing to attend Court on adjourned hearing-Court ordering party to pay process- fee for warrants under O. XVI, r. 10(3) but failing to fix date for payment of process-fee-Party failing to deposit process fee by adjourned date-Court, acting under O. XVII, r. 3 closing evidence and dismissing suit with costs for default of party-Exercise of discretion by Court under O. XVII, r. 3, held, not judicial-Civil Procedure Code (V of 1908), O. XLVIII, r. 1(2).   (c) Civil Procedure Code (V of 1908)------   ------O. XVII, r. 3-Applica tion-Rule permissive and not mandatory.   ORDER   Jamad Ali Khan appellant had brought a suit for pre-emption in the Court of the Sub-Judge, Muzaffarabad, against Mohammad Alam, vendee, and others in which issues had been framed and the plaintiff ordered to produce evidence. The witnesses of the plaintiff, who had been summoned through Court, were present in the trial Court on 29-10-1960 but the learned Sub-Judge was out of the headquarters on duty. The case was accordingly adjourned to 1-12-60. On the adjourned date i.e., 1-12-60, the witnesses failed to attend the Court. It was ordered that the plaintiff shall pay the process-fee for warrants and the witnesses shall be sum moned by issuing warrants for 7-2-61. On 7-2-61, the Mukhtar of the plaintiff and Mohammad Alam, vendee-defendant, were present. The witnesses were not present. It was found that warrants could not issue since the plaintiff had not deposited the process-fee for the same. The learned Sub-Judge, acting under Order XVII, rule 3 closed the evidence of the plaintiff and dis missed the plaintiff's suit with costs for want of proof. The plaintiff then went up in appeal before the District Judge against the order of the Sub-Judge dated 7-2-61. The learned District Judge by his judgment dated…