This is the defendants' petition for revision of the order of the Court of Shri Amjad Ali Khan, Subordinate Judge First Class, Jullundur, dated August 14, 1973, whereby he refused to summon the witnesses of the defendants for procuring whose attendance for August 23, 1973, process was prayed for by them in their application, dated August 13, 1973. The evidence of the plaintiff-respondents had been concluded on July 26, 1973, and the case was adjourned for the first time for the defendants' evidence to August 23, 1973. While adjourning the case, the trial Court had directed the defendants to deposit diet-money and process-fee within four days that is by July 31, 1973. The solitary ground on which the application of the present petitioners was not allowed was that they had deposited the diet-money and process-fee beyond the period of four days fixed by the learned Subordinate Judge for that purpose. I think the order of the trial Court is wholly misconceived and contrary to law. It is the right of a party to a civil suit under Order 16 Rule 1 of the Code of Civil Procedure to obtain summonses to the persons whose attendance is required either to give evidence or to produce documents on making an application to the Court for that purpose any time after the suit is instituted. The Court has no discretion in the matter. The only effect of not paying the diet-money and process-fee within the time allowed by the Court was that if service of summonses issued in pursuance of the application of the petitioners had not been effected on their witnesses by the date fixed for their evidence, the Trial Court could have considered delay in paying the diet-money and process-fee as a ground for declining in its discretion to grant further adjournment to the defendant-petitioners for producing their evidence if and when a request for that purpose was made under Order 17, Rule 1 of the Code. It appears to be plain that in these circumstances the trial Court has erroneously refused to exercise jurisdiction vested in it by law and has illegally refused to grant the application of the defendant-petitioners for summoning their evidence for the date fixed by the Court below for that purpose.
2. I accordingly allow this application, set aside and reverse the order of the trail Court, dated August 14, 1973, and grant the application of the defendant-petitioners for their witnesses to be summoned through Court for such date as the trial Court may now fix for the purpose. The parties shall appear before the Court below on November 19, 1973. The learned Subordinate Judge shall then fix a date for the evidence of the defendant-petitioners for which date their witnesses shall be summoned on payment of diet-money and process-fee if the same has not been already paid.
3. Mr. Harbans Lal Singh, learned Counsel for the plaintiff-respondents, says that the order under revision was passed ex parte by the Subordinate Judge and that the application of the defendant-petitioners was never opposed by his clients. I, therefore, leave the parties to bear their own costs in this revision petition.
4. Revision allowed.