Civil Revision No.5060 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5060 of 2008 Date of decision: 10.2.2009 M/s Swikar Plywood Ltd. ...Petitioner Versus Braham Parkash Mann & others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Arvind Mittal, Advocate for the petitioner. Mr. Gorakh Nath, Advocate for the respondents. S.D.ANAND, J. Facts, conceded before this Court, and even otherwise apparent from the record are as under:- On 1.8.2007, plaintiff-respondent Braham Parkash entered the witness box, as his own witness, and tendered an affidavit of his in lieu of the examination-in-chief. He was cross examined by a duly authorised learned counsel appearing on behalf of the defendant-petitioner. The cross-examination directed at the plaintiff-respondent runs into about three pages. On the next date of hearing i.e. 10.12.2007, the defendant- petitioner filed a plea for the recall of the plaintiff-respondent for further cross-examination. The application proceeded on the essential premise that the local counsel “engaged by the applicant, could not ask some material question related to material facts of the case.”. The further plea, in the context was that the initially engaged Chandigarh based counsel could not properly instruct the Sonepat based counsel for directing the Civil Revision No.5060 of 2008 -2- **** proper cross-examination at the plaintiff-respondent. That plea did not find favour with the learned Trial Court which declined it vide impugned order dated 25.8.2008 (Annexure P-6). Learned counsel appearing on behalf of the defendant- petitioner argues, at the very outset, that the approach of the learned Trial Judge was inappropriate inasmuchas the affidavit of the plaintiff- respondent tendered into evidence on that date only and the learned counsel appearing on behalf of the defendant-petitioner could just have not been in a position to properly cross-examine the witness. In that context, sustenance is also drawn from the fact that the learned Trial Court, while framing issues on 2.6.2007 and adjourning the matter to 1.8.2007, had categorically observed that “copy of affidavit, if any shall be furnished to the opposite party well in advance on all dates of evidence for both the parties so that the cross-examination on the date fixed is properly facilitated.” Reliance, in support of the advocated view, is placed upon a Division Bench judgment of Delhi High Court reported as M/s National Agro-Chemical Industries Ltd. Vs. National Research Development Corporation 2006 (2) RCR (Civil) 98. In an act of resistance, it is argued on behalf of the plaintiffs- respondents that the plea raised is incompetent inasmuchas the plaintiff- respondent had been subjected to full scale cross-examination with no indication at all that the learned counsel cross-examining the plaintiff- respondent was handicapped in the relevant behalf for the want of instructions from the Chandigarh based counsel. It is argued that the learned counsel who cross-examined the plaintiff-petitioner was not a proxy counsel. Infact, it is argued, that he was a duly authorised counsel and this part has not been challenged even in the petition filed before this Court. Civil Revision No.5060 of 2008 -3- **** On a perusal of record, I find myself in agreement with the plea on behalf of the plaintiff-respondent. Though it cannot be disputed that the learned Trial Court did direct that a copy of affidavit shall be made available to the opposite party in advance, it also cannot be ignored from consideration that a duly authorised learned counsel appearing on behalf of the defendant-petitioner proceeded to cross-examine the witness under reference in his own wisdom. At no stage did he indicate any predicament or reservation in conducting and concluding the cross-examination. The conceptualisation of any deficiency in the qualitative cross-examination would not, thus, be in order nor it would it authorise the entertainment of a request for the recall of a witness for further cross-examination. A Coordinate Bench of this Court (Pritam Pal, J.) held in Binder Singh Vs. Babu Ram 2007 (3) R.C.R. (Civil) 495 that a witness cannot be ordered to be recalled just because any particular point could not be put to a witness in the course of cross-examination. The judgment in M/s National Agro-Chemical Industries Ltd.'s case (supra) is inapplicable to the facts and circumstances of the present case. In that case, it was found as a fact that the Court, instead of recording that the testimony of witness under reference had been deferred, recorded that evidence stood closed. The facts in the case before this Court are entirely different. The petition is held to be denuded of merit and is ordered to be dismissed. February 10, 2009 (S.D.Anand) Pka Judge