K.S. Lodha, J. - (1.) THERE are two revisions filed by the defendant Bakhtawar Khan against the two orders of the learned Addl. Munsif Magistrate No. 1 Jodhpur, dated 19 10 -1985 and 14 -12 -1985 respectively in the same suit and as the matter involved in these two revisions are connected, they are being disposed of by a common order.
(2.) THE plaintiff's suit for ejectment against the present petitioner was pending for the defendant's evidence on 19 -10 -1985. The plaintiff's evidence had already been over on 24 -1 -1985. It appears that the defendant had not filed any list of witnesses and therefore, he was not entitled to get any witness summoned by the court. One of the witnesses whom the defendant wanted to examine was Shri Narsinghdass Moondra but he was not present in court on 19 -10 -1985 and an application under Order XXVI Rule 1 CPC was filed supported by the affidavit of the learned counsel for the defendant that the witness Shri Narsinghdass had suffered a fracture in his high and was unable to come to the court and, therefore, a Commission may be issued to examine him. This application was opposed by the plaintiff and the plaintiff had filed an affidavit to the effect that the witness had suffered a fracture about 1 -1/2 months back. He further averred that merely because the witness was about 73 years old and had suffered a fracture in his thigh he cannot be deemed to be unable to attend the court and that he could be brought in a taxi or some other conveyance. The court relying on this averment of the plaintiff and also on the fact that the medical certificate had not been produced, dismissed the application for examining the said witness on Commission It however, granted an opportunity to the defendant to produce his evidence by keeping the witness ready in court on 16 -11 -1985, the learned Munsif was on leave and therefore, the case was adjourned to 14 -12 -1985. On 14 -12 -1985, the defendant examined himself but his witness was not present and he urged to examine Shri Ajeet Johar, Advocate in his place in order to prove his attestation on the sale deed executed by Narsinghdass in favour of the defendant, This prayer was also disallowed by the court by its order dt. 14 -12 -85 on the ground that Shri Ajeet Johar was not present in the court and no cause was shown why he was not present. Aggrieved of these orders the defendant has come up in revisions.
(3.) THE revision No. 7/86 has been filed against the order dated. 19 -10 -1985, by which his application for issuance of Commission for examining Shri Narsinghdass was refused and revision No. 27/86 has been filed against the order dated 14 -12 -1985 closing his evidence and refusing to examine Shri Ajeet Jhhar. I have heard the learned counsel for the parties. It is contended by the learned counsel for the petitioner that the defence of the present petitioner in the suit for ejectment was that he had him -purchased equity of redemption from Narsinghdass with whom the suit house had been mortgaged by the plaintiff and thus he himself had become the owner of the house and was not a tenant of the plaintiff. It was on this account that Narsinghdars was sought to be produced in evidence but he could not be produced on account of his fractured thigh and in the alternative when the court had refused to examine him on Commission the defendant wanted to produce Shri Ajeet Johar the attesting witness of the sale deed but as the principal witness was Shri Narsinghdass and the defendant was trying to produce him or to get him examined on Commission. Ajeet Johar could not be produced on earlier occasions and without the permission of the court he could not have produced him on 14 -121985 It is further urged that the case was called at about 4.50 p m. on 14 -12 -1985, by which time Shri Ajeet Johar who is an advocate was not available and, therefore, also he could not be produced In these circumstances it is urged by the learned counsel for the petitioner that the orders of the court below may be set aside and he may be granted an opportunity to produce atleast one of these two witnesses. He has further urged that Shri Narsingbdass is still confined to bed and is unable to come to the court but he would be satisfied if Shri Ajeet Johar is allowed to be produced as a witness in the court.;