C.R. No.4152 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4152 of 2009 Date of decision:18.12.2009 Satnam Singh and others .......Petitioners versus Paramjit Kaur and others ....Respondents Coram:- HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. M. K. Dogra, Advocate for the petitioners. Mr. Veenet Sharma, Advocate for respondent Nos.1 to 3. L. N. MITTAL, J (ORAL) Defendant Nos.1 to 3 have filed this revision petition under Article 227 of the Constitution of India challenging order dated 13.06.2009 (Annexure P-3) passed by Additional Civil Judge (Senior Division), Ajnala thereby dismissing application moved by defendant No.1 for recalling of Malook Singh DW-2 Deed Writer for cross- examination. Defendants examined Malook Singh, Deed Writer as DW- 2. His examination-in-chief was recorded on 30.10.2007, but cross- examination was deferred on the request of counsel for plaintiffs (respondent Nos.1 to 3 herein) and the witness was bound down for the next date of hearing. However, the witness did not turn up on the next date of hearing and his cross-examination was, therefore, never conducted and inadvertently, the defendants closed their evidence. In these circumstances, application (Annexure P-1) was moved for C.R. No.4152 of 2009 -2- recall of Malook Singh DW-2 for his cross-examination by the plaintiffs so that his statement can be taken into consideration as evidence. The said application has been dismissed by the trial Court. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners contended that petitioners summoned and produced their witness Malook Singh on 30.10.2007 and conducted his examination-in-chief, but his cross- examination was deferred on the request of learned counsel for the plaintiffs and the witness was bound down for the next date of hearing, but he did not turn up on the next date of hearing and, therefore, there was no fault of the defendants. On the other hand, learned counsel for the plaintiffs (respondent Nos.1 to 3) contended that the case is of the year 2000 and the defendants are delaying the disposal of the suit inasmuch as the defendants after closing their evidence moved application for amendment of written statement, when the suit was fixed for rebuttal evidence. After disposal of the said amendment application by the trial Court, the defendants moved application (Annexure P-1) for recall of Malook Singh DW-2. It was also contended that Malook Singh DW-2 never appeared in the Court after his examination-in- chief had been recorded on one date. I have carefully considered the rival contentions. On careful consideration, I am of the opinion that the petitioners should be granted one effective opportunity for putting in witness box C.R. No.4152 of 2009 -3- Malook Singh DW-2 for cross-examination by respondent Nos.1 to 3 (plaintiffs) on payment of costs. Reason for this conclusion is that the defendants had produced their said witness and also conducted his examination-in-chief, but cross-examination of the witness was deferred on the request of counsel for the plaintiffs. Moreover, the witness was bound down for the next date of hearing, but he did not turn up on the next date of hearing. His examination-in-chief cannot be taken into consideration without recording his cross-examination. To this extent, the defendants are not at fault. However, defendants have to be subjected to costs because they voluntarily closed their evidence, without ensuring that cross-examination of Malook Singh DW-2 was conducted. In view of the aforesaid, the instant revision petition is allowed and order dated 13.06.2009 (Annexure P-3) passed by Additional Civil Judge (Senior Division), Ajnala is set aside and the trial Court is directed to grant one effective opportunity to the defendants for putting in witness box Malook Singh DW-2 for cross- examination on behalf of the plaintiffs, subject to payment of Rs.5000/- as costs precedent. The petitioners shall produce the said witness on their own responsibility. Petitioners may seek assistance of the Court to summon the said witness, but it shall be responsibility of the petitioners to ensure his presence and no further opportunity shall be granted to the petitioners. ( L. N. MITTAL ) JUDGE 18.12.2009. A.Kaundal