IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 550 of 2009 (O&M) Date of Decision: 31.1.2009 Mohan Sarabjit Singh ....Petitioner Versus Jatinder Pal Singh and another ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Gorakh Nath, Advocate for the petitioner. RAJESH BINDAL J **** The challenge in the present petition is to the order dated August 18, 2008 passed by the learned Court below whereby the application filed by the petitioner/defendant for recalling of respondent No.1/plaintiff for further cross- examination has been dismissed. Briefly the facts are that in a suit filed by respondent No.1/plaintiff for declaration and mandatory injunction, challenging the sale deed dated January 3, 2003, executed by Harbhajan Singh Cheema defendant No.1 in favour of Mohan Sarabjit Singh a co-defendant/petitioner was a result of fraud etc and also for rendition of account. The suit was filed on March 15, 2003. The issues were framed on October 13, 2003 and the case was fixed for evidence of respondent No.1/plaintiff on 10.2.2004. As the respondent No.1 who was residing in Canada had come to India in January 2004 and was to fly back an application was filed in the Court on January 10, 2004 for pre-poning the date of hearing for recording the evidence of respondent No.1/plaintiff. The prayer was accepted. The date of hearing accordingly for evidence of respondent No.1 was pre-poned to January 12, 2004. On the date fixed the evidence of respondent No.1/plaintiff was recorded. However, on the request of counsel for the petitioner/defendant No.2 the case was adjourned to 13.1.2004 for cross- examination at 10.00 a.m. The case was taken up at 10.00 a.m. However,the counsel was not present for cross-examination. Then it was taken up at 10.45 a.m. and thereafter at 11.00 a.m. A request was made for taking up the case after lunch as the counsel was busy in another Court. However, that request could not be accepted for the reason that respondent No.1-plaintiff has to fly back to Canada on 13.1.2009 night itself from Delhi. Considering these facts, the petitioner/defendant No.2 was directed to cross-examine the witnesses if he so desired. Late Harbhajan Singh Cheema, father of the petitioner cross examined respondent No.1 on his behalf C.R. No. 550 of 2009 (O&M) -2- and also on behalf of his son. The case was adjourned for plaintiff's remaining evidence. Thereafter even the evidence of respondent No.1/ plaintiff was closed and during the period the evidence of petitioner/defendant was being recorded, an application was filed on 29.5.2007 for recalling respondent No.1/plaintiff for cross-examination. The same having been rejected, the petitioner-defendant is before this Court. Learned counsel for the petitioner submits that late Harbhajan Singh Cheema, the father of the petitioner being a lay man could not fully cross- examine the respondent No.1/plaintiff on the date when the case was fixed for his cross-examination, counsel for the defendant being busy in another Court. The Court should have granted some respite so that the truth could be extracted from the plaintiff in his cross-examination. However, I do not find any merit in the submissions made as it was well known to the petitioner and his father Harbhajan Singh Cheema that on an application filed respondent No.1/plaintiff on January 10, 2004, that he had come to India for a very short period, the date fixed for leading his evidence was pre- poned to January 12, 2004 on which date his affidavit for evidence was filed and on request of counsel for petitioner/defendant No.2 the case was fixed on the next date i.e. 13.1.2004 for his cross-examination at 10.00 a.m. Counsel was not present. Case was directed to be taken up at 10.45 a.m., then at 11.00 a.m. When even at 11.00 a.m. counsel for the petitioner was not present, Harbhajan Singh Cheema, stated that he was ready to cross-examine the respondent No.1/plaintiff on behalf of the defendants. Subsequent thereto, his cross examination was completed and the case was fixed for further evidence of the plaintiff. Thereafter, the evidence of respondent No.1/plaintiff was completed and during the period the evidence of the petitioner/defendant was being recorded, an application was filed for recalling the respondent No.1/plaintiff for his further cross examination on May 29, 2007 i.e. 3 years 4 months after the evidence of respondent No.1/plaintiff was recorded and even he was cross-examined by defendant No.1 himself in the absence of his counsel. Keeping these facts in view, I do not find any reason to interfere in the impugned order. The respondent No.1/plaintiff had been cross-examined by defendant No.1 in whatever manner he could. The absence of counsel at that time cannot be made a ground for recalling the witness for further cross- examination and that too 3 years and 4 months after the evidence was led. Accordingly, the present revision petition is dismissed. (RAJESH BINDAL) 31.1.2009 JUDGE Reema