CR No. 5676 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5676 of 2008 (O&M) Date of decision: 24.4.2009 Jagir Singh .. Petitioner v. Ranjit Singh and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Arun Abrol, Advocate for the petitioner. Mr. K. S. Rekhi, Advocate for respondents No. 4 and 6 to 9. .. Rajesh Bindal J. Challenge in the present petition is to the order dated 10.10.2008, passed by the learned court below, whereby the application filed by the petitioner- plaintiff for leading additional evidence, was dismissed. Briefly, the facts are that respondents No. 1 to 3 entered into an agreement to sell the property in dispute with the petitioner on 19.8.1997. The total sale consideration was determined at Rs. 4,00,000/-, out of which Rs. 3,00,000/- were paid as earnest money and Rs. 1,00,000/- was to be paid at the time of registration of sale deed. The last date for execution of the sale deed was fixed as 8.6.2000. On account of failure of respondents No. 1 to 3 to execute the sale deed on or before the date fixed, suit for possession by way of specific performance of agreement to sell was filed on 19.2.2001. The same was decreed ex-parte on 31.5.2001. In terms thereof, the petitioner deposited the balance sale consideration of Rs. 1,00,000/- in the Court, which was withdrawn by respondents No. 1 and 3. The sale deed was executed on 30.7.2001. Thereafter respondents No. 1 to 3 filed application for setting aside of ex-parte decree. However, vide order dated 20.9.2005, the same was allowed only qua respondent No. 2, who had not withdrawn the balance sale consideration deposited by the petitioner in the Court. CR No. 5676 of 2008 [2] Thereafter, amended plaint was filed and the proceedings in the suit continued afresh. It was during the pendency thereof that the petitioner filed application for leading additional evidence, which has been dismissed and the order is impugned before this Court. Learned counsel for the petitioner submitted that when the suit was decreed ex parte, prior thereto he had produced Bakshish Singh Aujla, Advocate, scribe of the agreement to sell, as PW1. However, after the ex -parte decree was set aside, he was not re-examined and had also not been cross-examined by respondent No. 2-defendant, as at that time she had been proceeded against ex parte. As his statement will not be read in evidence in the absence of cross- examination and inadvertently he could not be produced for cross-examination after the setting aside of ex-parte decree, he only wants to produce him for cross- examination by defendant-respondent No. 2. Learned counsel for the respondents submitted that for any lapse on the part of the petitioner-plaintiff, he should not be permitted to move the application for leading additional evidence at the fag end of the trial, when the case was fixed for arguments. After hearing learned counsel for the parties, I find merit in the submissions made by learned counsel for the petitioner. It is a case where initially ex-parte decree was passed against respondents No. 1 to 3 in a suit for possession by way of specific performance of agreement to sell. The petitioner had already paid the entire sale consideration money. Rs. 3,00,000/- were paid as earnest money to respondents No. 1 to 3, whereas Rs. 1,00,000/- were deposited in the Court after the passing of ex-parte decree, which were also withdrawn by respondents No. 1 and 3. The ex parte decree was set aside on an application by respondent No. 2, who had not withdrawn the part sale consideration. As the proceedings in the suit started afresh, after setting of the ex-parte decree, in that process the witness, namely, Bakshish Singh Aujla, Advocate, who was scribe of the agreement to sell and appeared as P.W-1, could not be produced for his cross- examination by respondent No. 2, which was pointed out to the petitioner after he had changed the counsel. In my opinion, for that inadvertent lapse on the part of the petitioner, he should not be made to suffer as procedural law is subservient to justice. Accordingly, while setting aside the impugned order dated 10.10.2008, the petitioner is granted opportunity to produce PW1-Bakshish Singh Aujla, Advocate, whose examination-in-chief has already been recorded, for cross-examination by respondent No. 2 on the date already fixed before the trial court, i.e., 13.5.2009. CR No. 5676 of 2008 [3] The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 24.4.2009 mk