CM(M) No.316/2008 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 8th May, 2008 + CM(M) No.316/2008 & CM No.3650/2008 # Dr. J.K. Jain ..... Petitioner ! Through: Mr. Alok Kumar, Advocate Versus $ M/s Krisnaram Baldeo ..... Respondent ^ Through: Mr. V.K. Sharma, Advocate CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether the reporters of local papers may be allowed to see the judgment? 2. Whether the judgment be referred to the reporter or not? yes 3. Whether the judgment should be reported in the digest? yes Veena Birbal, J. (ORAL) By way of present petition, petitioner has challenged order dated 11.01.2008 whereby petitioner’s application under Order 18 Rule 17 read with Section 151 CPC for recalling of PW1, Sh. P.K. Ram for his cross-examination has been dismissed. It is stated that respondent who is plaintiff before the learned trial court has filed a suit for recovery of Rs. 2,69,636.04 against petitioner/defendant. The pleadings are CM(M) No.316/2008 Page 2 of 5 complete. Issues have already been framed and the matter is at the stage of evidence. It is stated that the matter was fixed for respondent evidence on 23.08.2007, i.e. plaintiff’s before the trial court. On the said date, counsel for petitioner/defendant had to appear in a case pending in this court. The details of said case are given in the petition. On the said date, apart from present case, counsel for petitioner/defendant had also to appear at Tis Hazari Court in a case where matter was fixed for arguments on an application under Order 39 Rule 1 and 2 read with Section 151 CPC. It is stated that after attending the matter in this court, the counsel for petitioner/defendant was held up in injunction matter where arguments continued uptil 1.30 p.m. It is stated that counsel could not appear in time in the present case as such learned ADJ after waiting uptil 1.20 p.m. closed plaintiff/respondent evidence. Thereafter, petitioner/defendant moved an application under Order 18 Rule 17 read with Section 151 CPC for recalling of said witness wherein the detailed reasoning was stated as to why the counsel for petitioner/defendant could not appear on 23.08.2007. Copies of proceedings were also attached to justify the bona fides. However, learned ADJ rejected the application vide impugned order dated 11.01.2008. CM(M) No.316/2008 Page 3 of 5 Learned counsel for petitioner/defendant submits that there was a justified reason for non-appearance of counsel on 23.08.2007 before pre-lunch session. It is further submitted that no adjournment was requested on that day and only request was made for passing over of the matter after lunch. It is stated that due to bona fide reasons as stated above, the counsel for petitioner/defendant could not appear. It is further submitted that the counsel for petitioner/defendant had already informed the counsel for respondent/plaintiff as well as witness that he may have to request for continuation of the matter after lunch on 23.08.2007 and they had not objected to it. It is submitted that the counsel was held up for reasons beyond his control and there is no intention for delaying the matter and the learned trial court has committed serious illegality in rejecting the application of petitioner/defendant for recalling of PW1, Sh. P.K. Ram for cross-examination. Counsel for respondent has contended that petitioner/defendant is trying to delay the matter by not cross- examining the respondent/plaintiff as such learned ADJ has rightly not given opportunity to petitioner/defendant to cross- examine the respondent/plaintiff. It is submitted that there is no illegality in the impugned order and no interference is CM(M) No.316/2008 Page 4 of 5 required by this court. Learned counsel has also relied upon judgment of Salem Advocate Bar Association, T.N. Vs. UOI reported in (2005) 6 SCC 344. During arguments, it has been pointed out that there is only one witness of the plaintiff, i.e. plaintiff himself (PW1) whose examination-in-chief has already been filed by way of affidavit. I have also perused the order sheet showing the dates of evidence in the present case. It shows that the cross- examination also could not be concluded due to non-appearance of respondent/plaintiff (PW1) on few dates. It also shows that the matter was also transferred from one court to another. On 23.08.2007, respondent/plaintiff could not be cross-examined as the counsel for petitioner/defendant could not appear before lunch being held up in another court as is evident from the material on record. The impugned order has serious consequences upon petitioner/defendant as the same is depriving him of fair opportunity to prove his defence. A party should not be allowed to suffer due to lapse on the part of his counsel. There is only one witness which has to be cross- examined by petitioner/defendant who is the material witness in this case, i.e. plaintiff himself. I have also considered the CM(M) No.316/2008 Page 5 of 5 judgment cited by learned counsel for respondent/plaintiff. In the peculiar facts and circumstances of the case and also considering that there is only one witness, i.e. plaintiff who has to be cross-examined by petitioner/defendant and for effective adjudication of the matter on merits, impugned order is set aside and only one opportunity is given to petitioner/defendant to cross-examine Sh. P.K. Ram (PW1) whose examination-in- chief by way of affidavit is already on record, subject to payment of cost of Rs. 4,000/-. Respondent/plaintiff to ensure that the said witness shall remain present on the next date which is fixed for D.E. If cross-examination is not concluded on the said date or the said witness could not be cross-examined for some reasons, not attributable to petitioner/defendant, the trial court would be at liberty to fix it for any other date as per its convenience. Petition stands disposed of accordingly. Copy of this order be sent to learned trial court. Veena Birbal, J. May 08, 2008 kks