Civil Revision No.6766 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6766 of 2011 (O&M) Date of Decision: November 7th, 2011 Satnam Singh .... Petitioner Versus Bank of India and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Sandeep Arora, Advocate, for the petitioner. VIJENDER SINGH MALIK, J. The present revision petition has been brought by one of the plaintiffs under the provisions of Article 227 of the Constitution of India for setting aside the order dated 29.9.2011 (Annexure P4) vide which learned Civil Judge (Junior Division), Gurdaspur treated the cross examination of Harbhajan Singh (DW-3) as nil and closed the evidence of the defendants without giving due opportunity to the plaintiffs to cross- examine the aforesaid witness. The petitioners, Satnam Singh along with Harbhajan Singh and Sukhdev Kaur had brought a suit for declaration to the effect that they are entitled to get amount of FDRs/Saving Account and other proceeds lying in the name of Darbara Singh with Bank of India, Gurdaspur branch to the extent of 3/4th share. The said suit was pending for 29.9.2011 for evidence of the defendants. To be precise, Harbhajan Singh, put in the Civil Revision No.6766 of 2011 2 .. witness box as DW-3, was to be cross-examined on behalf of the plaintiff. He was present on the said date. However, application was moved by the plaintiff for adjournment, for the purpose of cross- examination of Harbhajan Singh claiming that his counsel had not been appearing in the court due to some domestic work. Noticing that Harbhajan Singh had been appearing on 17.8.2011, 3.9.2011 and 15.9.2011 as also on the date of the impugned order, learned trial court found no substance in the application and, consequently, treated the cross-examination of Harbhajan Singh as nil. Simultaneously, defendants No. 4 to 8 closed their evidence and the case was adjourned to 15.10.2011 for rebuttal evidence, if any and arguments. I have heard Mr. Sandeep Arora, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has submitted that Harbhajan Singh (DW-3) is the most material witness in this case and without cross-examining him, the case of the plaintiff would be seriously prejudiced. According to him, counsel for the plaintiff had gone to Chandigarh on 29.9.2011 with regard to some domestic work and in his absence his junior counsel, Mr. Vishnu Sharma moved an application for adjournment, despite which the court deemed the cross examination of Harbhajan Singh to be nil and proceeded to fix the case for rebuttal evidence and arguments. It is true that on 3 occasions, earlier to 29.9.2011, Harbhajan Singh was there for being cross examined and he was not cross examined. What were the circumstances in which Harbhajan Singh could Civil Revision No.6766 of 2011 3 .. not be cross-examined on those dates is not evident from the impugned order. However, on 29.9.2011, counsel for the plaintiffs was stated by way of application filed by his junior to be away in connection with some domestic work and in this situation, date was sought. There can be no gain-saying that cause of a party should not be allowed to be prejudiced for any fault of his counsel. Even if it is said that counsel for the plaintiffs was not justified in absenting himself from the court proceedings, the case of the plaintiff would be prejudiced if the cross examination of Harbhajan Singh is treated as nil. In these circumstances, costs could be imposed on the plaintiff for failure of his counsel to cross examine Harbhajan Singh who had been appearing for four dates. There may be no justification for not cross examining Harbhajan Singh on previous three dates and keeping the same in view, heavy costs could be imposed on the plaintiff. However, depriving the plaintiffs of a chance to cross examine Harbhajan Singh, who is one of the defendants himself, would amount to injustice to the plaintiff. In these circumstances, I find that the impugned order cannot be upheld. Consequently, the revision petition is allowed and the impugned order is set-aside subject to payment of Rs. 10,000/- as costs, directing learned trial court to give one clear opportunity to the plaintiffs to cross examine Harbhajan Singh, for which he may be asked to appear in the court on that date. (VIJENDER SINGH MALIK) JUDGE November 7th, 2011 som