Bashir Ahmad Shah v. Munsiff Ganderbal

1. Nobody is present for the petitioner nor the petitioner is present. This Revision petition, which has been filed by the peti­tioner is against the order passed by the learned Munsiff, Ganderbal, and 23.6.1986. The impugned order reads as under:

"Vukla Firiqeen hazir - Gawa office kanongo hazir - Gawa mazkoor Ka Izahar hai ki matlooba record wo sath na laya hai. Iskailiya mohlat Ka Kahan hai - Vakil mudayan ko esnisbat Koie Uzar na hai - lihaza mohlat dijati hai - Mioana misal saie rakim nai paya ki baroie hukum darmiyani mohrira 7-6-86 gawah mazkoor bawajood daenay zamanat paish na huwa hai lihaza gawah mazkoor Jiski talbi morkha 24-10-85 saie ajtak matlob thei bawasfai tamil kae be hazir adalat na huwa hai - lihaza gawa mazkoor kai khilaf eis nisbat Karvaie Kama lazmi haie - Istor gawa par zir dafa 32 zabita diwani kai jurmana mablaga so rupia aaid hota hai -Hasab istidai vakil mudalum gawa rakam jurmana ander panch youm ada Karie - Misal batakarur 19-7-86 ko paish howaie - hukum sunaya gaya - Tehrirulsadar - daskat Munsiff Sa­hib Ganderbal.

2. The order eminates from a civil suit in which the petitioner was called as a wit­ness. The petitioner did not appear. Non bailable warrants were issued against him. The petitioner submitted his bail. Again he did not appear, however on the date when the impugned order was passed, the petitioner who was the witness appeared in the court and requested for adjournment on the ground that he could not trace out the records and the revenue record is not with him. The court accepted his prayer and ad­journed the case. Later on passed the or­der that the petitioner did not appear on two dates, so he was fined by Rs. 100/-under Section 32 of Civil Procedure Code.

3. From the impugned order, it appears that the witness had not appeared and non-bailable warrants were issued against him and when he made his appearance on the due date, he was allowed to produce the record on some other date and for not appearing in person on two previous dates for the disobe­dience of which he was fined by Rs. 100/-. I don't dispute the powers of the learned Judge to impose a fine of Rs. 100/- but this power is to be exercised in a proper manner and with the application of mind. There is no ap­plication of mind, while passing the impugned order by the learned Judge, even it is admit­ted that the petitioner did not appear twice in compliance of court orders, but before imposing the fine proper course to be adopted was to frame Robkar and direct him to show cause on the same day or on a future date why he did not appear before the court. After giving the opportunity of being heard, it was upto the trial court to see whether cause shown by the witness was genuine or not. In case he was satis­fied, that the explanation tended by the wit­ness was not satisfactory, he could validly exercise the power under Section 32 of C.P.C. by imposing a single day fine upto Rs. 500/-. This exercise Was not com­pleted in the present case, no opportunity of being heard was given to the petitioner and the order was passed at random arbi­trarily which cannot stand in the eye of law.

4. For these reasons therefore, the im­pugned order is quashed. File be send to the trial court, who will frame Robkar and give an opportunity to the petitioner of be­ing heard and after giving such opportunity to pass the appropriate orders in accord­ance with law.

Srinagar: Sd/-

3-4-1997 Justice M.Y.Kawoosa