(MAHESH BHAGWATI),J. - (1.) BY way of the instant writ petition, the petitioner-defendant has beseeched to quash and set aside the order dated 13th March, 2007, whereby the learned Additional District Judge, No.3, Kota, dismissed the application of the petitioner filed under Section 151 of CPC imploring that the Branch Manager of National Insurance Company be ordered to be summoned in evidence.
(2.) SHORN of unnecessary details, the facts of the case, in brief are that respondent-plaintiff filed a suit for recovery of Rs. 7,97,161/- against the petitioner-defendant. Pursuant to the notice of summon, respondent appeared in the court and filed the written statement of defence. The court settled the issues on 22nd May, 1993 based on pleadings of both the parties and adjourned the case for recording the evidence of respondent-plaintiff. After completion of plaintiff's evidence, the case was adjourned for recording the petitioner-defendant's evidence. The petitioner-defendant was granted ample opportunity to lead the evidence, but utterly failed to do so. Consequently, on 14th February, 2006, the court granted last opportunity so as to the cost of Rs. 500/- for producing the witness and the court also issued summons for the appearance of the Branch Manager of the Bank. It is revealed that one Subhash Chandra Malhotra appeared in evidence, pursuant to the prayer of the defendant, but he was not found to be the witness, whom the defendant wanted, in fact to produce. Again an opportunity was granted for defendant's evidence, but the petitioner-defendant utterly failed to produce any of the witness. Resultantly, the evidence of the petitioner-defendant was closed and the case was adjourned to 23rd November, 2006 for hearing final arguments. When the case was fixed for final arguments, on 16th January, 2007, the petitioner-defendant again filed an application under Section 151 of CPC imploring that the Branch Manager of Bank be summoned for evidence. The learned trial court dismissed the application, which has been impugned by way of the instant writ petition invoking extra-ordinary jurisdiction of this Court. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, including the impugned order, it is revealed that the learned trial court despite there being a cap of three adjournments, granted ample opportunity to produce the witnesses, but the petitioner-defendant miserably failed to produce the evidence in support of his defence. The learned trial court granted last opportunity on 14th February, 2006 at the cost of Rs. 500/-, despite that the witness, whom the defendant wanted to produce in evidence did not appear and one Subhash Chandra Malhotra appeared in evidence though at the behest of the petitioner-defendant himself. The learned trial court observed that the petitioner-defendant was throughout careless and indifferent in his pursuit and never cared to produce any witness to support his defence. Ultimately, the learned trial court dismissed the application. It is relevant to record at this stage that the Hon'ble Apex Court has consistently held in plethora of cases that the extra-ordinary jurisdiction of the High Court under Article 227 of the Constitution should be invoked only when the impugned order is found to be perverse, contrary to material or it results in manifesting injustice. The Hon'ble Apex Court has also observed many a times that the High Court should not invoke the extra-ordinary jurisdiction to upset the pure finding of facts. Adverting to the facts of the instant case, it is noticed that the petitioner-defendant was not only careless and indifferent to produce the witness in support of his defence, but he is found to have abused the process of law too. The petitioner-defendant, despite having given ample opportunity and granted numerous adjournments, did not produce the witness whom in support of his defence. The learned trial court, thereafter, adjourned the case for hearing final arguments and after three months of that day, the petitioner-defendant again reiterated the same application that he could be granted one more opportunity to produce the witness in support of his defence. Needless to say that the petitioner-defendant has not only been throughout careless and indifferent in his pursuit but has endeavoured to abuse the process of court also. The impugned order, in the facts and circumstances of the case, is found to be perfectly just and proper and suffers from no infirmity. The suit has been pending in the court since 1992 and in view of these facts, there was no option before the learned trial court, but to close the petitioner's evidence. The writ petition, in view of above, is found totally devoid of substance and the same deserves to be dismissed with the exemplary cost of Rs. 5,000/-. For the reasons stated above, the writ petition fails and the same being bereft of any merit stands dismissed so as to the cost of Rs. 5,000/- to be paid to the respondent-plaintiff. It is made clear that the petitioner-defendant should be allowed to argue the case only when the amount of cost is paid to the plaintiff-respondent. ;