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First Appeal No.29 of 1977, heard on 4th December, 1985.

‑‑‑S.96 & O.XVI, R.1(3)‑‑Material witness, examination of‑‑Even if on previous hearing, appellant was given last chance to produce witnesses for examination, trial Court, held, should have given another chance to appellant to produce same, if ‑evidence of such witnesses was material in view of Court‑‑Inference drawn, by Court that witnesses, if produced would have given evidence against appellant would be ill‑founded and unjustified in circumstances witness.‑‑[Witness].

M. Amanullah Khan for Appellant.

Abdul Matin for Respondents.

Date of hearing: 4th December, 1985.

This appeal is directed against the judgment and decree of IInd Senior Civil Judge Hyderabad, dated 12‑7‑1977 in F.C.S. No.13/72 whereby the suit for recovery of Rs.33,000 as damages by the appellant was dismissed on the ground that the appellant had not been able to prove the negligence of the Railway Servants in respect of the collision that took place on Hyderabad‑Tando Muhammad Khan Road on 17‑12‑1968 at 10‑30 p.m. involving Truck bearing No.QA‑3282 of the appellant, and the Railway Engine of the defendant at the site of Railway crossing near Zeal Pak Cement Factory. Without dealing with the merits of the case I am remanding this case back for fresh decision to the IInd S. C.J. Hyderabad after recording the evidence of the three witnesses, namely, Abdul Waheed, Muhammad Ibrahim and Akhtar Abbas, whom the appellant wanted to produce before the Trial Judge, but sufficient opportunity was not allowed to him. Two of these witnesses are the truck driver and cleaner of the appellant and their evidence is quite material. In fact the learned Judge in his impugned judgment has drawn an adverse inference against the appellant for not calling the truck driver and his witness in the case.

2. The appellant had applied for summoning these witnesses on 29‑11‑1974 and he had paid costs for the same but these witnesses had not turned up on 18‑12‑1974 probably on account of the fact that by mistake the summons have been issued for 16‑12‑1974. There were four adjournments granted thereafter to the appellant. On 23‑8‑1975 the appellant again made a request for adjournment on the ground that his witnesses were not available as they were out of Hyderabad. The said application had been consented to by the counsel of the other side. However, the learned Civil Judge dismissed the said application as he had given last chance to the plaintiff on the previous hearing.

3. It is correct that on the previous adjournment the learned Civil Judge had written the word "last chance" in his order of adjournment but if he was of the view that the examination of these witnesses was material, as is apparent from his impugned., judgment, then it was necessary that he should have allowed another opportunity to the appellant to produce these witnesses particularly when the other side has consented to the same.

4. In any case there was no justification in these circumstances for the observation that adverse inference should be drawn against the appellant that if he had produced the truck driver, he would have given evidence against him. The appellant had summoned the truck driver and was making a request for time produce the said truck driver and, therefore, the inference drawn against him by the learned Judge was ill‑founded. I, therefore, set aside the impugned judgment and decree, dated 12‑7‑1977 and remand the case back to the IInd Senior Civil Judge, Hyderabad for fresh decision after allowing the appellant a reasonable opportunity to produce the abovementioned three witnesses. The respondent would also be allowed the opportunity to rebut the said evidence.

The appeal is, therefore, disposed of.

In view of the delay involved I would direct the Civil Judge to deal with this case expeditiously.

H. B. T. Order accordingly.

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