MILAP CHANDRA, J. - (1.) THIS revision petition has been filed against the order of learned Addl. District Judge, Barmer dated September 12,1988 by which he closed the plaintiff petitioner's evidence and fixed 29th September, 1988 for the defendant's evidence. The facts of the case giving rise to the revision petition may be summarised thus;
(2.) THE plaintiff-petitioner filed a suit for the recovery of Rs. 1,20,000/-under Order 37 Rules 1 and 2 C. P. C. on the basis of a promisory note. THE suit was resisted by the defendant. Issues were framed on May 24,1988. Issue No. 1 relates to the execution of the promisory note and receipt for consideration and its burden was placed upon the plaintiff. Issue No. 2 is regarding the effect of the non-compliance of the provisions of section 22. and 23 of the Rajasthan Money Lenders Act and the issue No. 3 relates to the admissibility of the pronote for want of stamp duty. THE burden of those two issues was placed upon the defendant. September 12,1988 was fixed for the plaintiff's evidence. On that day, plaintiff could not produce his evidence and as such his evidence was closed. THE same day, an application was moved under Order 18 Rule 3, C. P. C. reserving the right to produce evidence on issues No. 2 and 3 in rebuttal. No order was passed on it except mentioning that the plaintiff's evidence has already been closed. It may be mentioned here that in the revision petition the plaintiff-petitioner has also prayed for setting aside the order dated August 25,1988, by granting adjournment to the plaintiff for producing bis witnesses on payment of Rs. 400/- as costs. Learned counsel for the plaintiff states that he does not want to prese this prayer. It is contended by the learned counsel for the plaintiff-petitioner that the learned trial court was not justified in closing the plaintiff's evidence. On 12th September, 1988, application (paper No. 8/65) was moved on behalf of his witness Bagh Singh for adjournment and in any view of the matter, coercive steps could be taken against him to enforce his attendance. He further contended that the learned trial court should have closed the plaintiff's evidence on issue No. 1 only and should not have closed his right to produce evidence in rebuttal on issues No. 2 and 3. In reply, it is contended by the learned counsel for the defendant-non-petitioner that the application for keeping the right reserved for producing the evidence in rebuttal was moved on September 12, 1988 and not at the time of commencement of the evidence. He further contends that the plaintiff has already been given several dates for producing the evidence. It is not in dispute that the burden of issues No. 2 and 3 is upon the defendant and not on the plaintiff. The learned trial court should have given an opportunity to the plaintiff for producing his evidence in rebuttal on issues No. 2 and 3. By the impugned order, plaintiff has been deprived of producing his evidence in rebuttal on issues No, 2 and 3. The plaintiff got the summons issued for his witness Bagh Singh. It is clear from his application (paper No. 865/1) dated 12th September, 1988 that he was duly served with the summons but he did not appear before the court on 12th September, 1988 due to his personal grounds. Coercive steps to enforce his attendance could have been taken in the trial court instead of closing the plaintiff's evidence, plaintiff is not at fault for the non-appearance of his witness Bagh Singh. In view of these facts and circumstances, it is clear that the learned trial court has acted with material irregularity in exercise of its jurisdiction in closing the plaintiff's evidence. It is, therefore, difficult to sustain the order dated September 12, 1988.
(3.) AT this stage, the learned counsel for the plaintiff submits that the plaintiff does not want to produce any evidence on issue No. l and he simply wants to produce evidence in rebuttal on issues No, 2 and 3. Consequently, the revision petition is partly allowed and the plaintiff will get an opportunity to produce his evidence in rebuttal on issues No. 2 and 3. To this extent, order of the learned trial court dated September 12, 1988 is modified. No order as to costs. The parties will appear before the court of Additional District Judge, Banner on 7th August, 1989. .;