CR No.7553 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.7553 of 2009 (O&M) DATE OF DECISION: 11.02.2010 **** Sh. S.P. Goyal and others . . . . Petitioners VS. Sh. Hira Lal Goyal and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Mukul Aggarwal, Advocate for the petitioners. Mr.Sumit Mahajan, Sr. Advocate with Mr.Sham Lal Bhalla, Advocate and Mr.Amit Kohar, Advocate for the respondent No.1. **** RAKESH KUMAR JAIN J. (ORAL) This revision petition is directed against order dated 31.08.2007 (Annexure P-6) vide which a request for adjournment for deferring the cross-examination on behalf of defendants No.1 to 3 was declined on the ground that the suit is of 1993 and defendants have been seeking dates on one pretext or other and have been succeeded in disposing of part of the property in dispute in the mean time. In brief, the facts of the case are that the petitioners and respondent No.1 were the partners of M/s Sanjeev Woollen Mills, Ludhiana by virtue of a partnership deed dated 1.4.1987. Respondent No.1 sent a notice dated 12.5.1993 for the purpose of dissolution of CR No.7553 of 2009 (O&M) -2- the firm and filed a suit on 8.11.1993 for dissolution of firm as well as rendition of accounts. According to the case of the petitioners, an application was filed by them in the month of May, 1993 under Sections 8, 22 and 23 of the Indian Arbitration Act, 1940 (for short ‘the Act’) before the Civil Court for the purpose of appointment of an Arbitrator. The said application was dismissed on 1.4.2009 against which the petitioners had filed a Civil Revision No.2727 of 2009 which was also dismissed on 02.12.2009. It is also the case of the petitioners that they had filed application under Section 34 of the Arbitration Act, 1940 for staying the proceedings before the Civil Court, which was dismissed on 17.3.2008 against which an appeal was also preferred which too met with the same fate. The issues in the case were framed on 27.8.2002 and the plaintiff was examined on 15.3.2004. Thereafter, an application was filed by the petitioners on 2.6.2004 for adjourning the Civil Suit sine die on the pretext that the application was pending for referring the matter to the Arbitrator. The said application was dismissed on 31.5.2006. Thereafter, the petitioners filed another application on 20.8.2007 for adjourning the case sine die, which was dismissed on the same date against which a Civil Revision No.447 of 2007 was preferred by the petitioners, which was also dismissed as withdrawn with liberty to file review application on 26.7.2007. According to the petitioners, review application has been filed, which is still pending but in the meanwhile, impugned order has been passed on 21.8.2007. It is also brought to the notice of this Court by counsel for respondent No.1 that the petitioners had filed an application for transfer of the CR No.7553 of 2009 (O&M) -3- case before the District Judge, Ludhiana from the concerned Court of Sh. Tarsem Mangala. However, the said application became infructuous as the said officer has been transferred in due course. Learned counsel for the petitioners has vehemently argued that request to defer cross-examination was made on 31.8.2007 because brother-in-law of petitioner No.1, namely Roop Chand Gupta had expired and petitioner No.1, who is looking after the affairs of the firm, was unavailable being away to Bombay. It is also submitted that after the issues were framed on 27.8.2002, the case was adjourned on several dates as no plaintiff- witness was present and even the cost was imposed. Ultimately, respondent No.1 examined himself as PW1 on 15.3.2004 after which an application was filed by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint, which was allowed on 6.12.2006. It is also submitted that pursuant to the amendment, additional issues were framed on 30.3.2007 and thereafter the case was adjourned on the request of counsel for the plaintiff for leading his evidence. It is, thus, submitted that there is no delay on the part of the petitioners. It is also, additionally, argued that the present cross-examination of the plaintiff is going on by the other set of defendants and if permission is granted to the petitioners of cross-examination the plaintiff then no prejudice would be caused to them. He further submits that he would complete his cross-examination within two days. On the other hand, learned counsel for respondent No.1 has argued that the petitioners have not come to the Court with clean hands and is guilty of suppression of material facts. It is also submitted that the present Revision Petition is hopelessly suffers from CR No.7553 of 2009 (O&M) -4- delay and latches because it has been filed on 17.12.2009 assailing the order of the trial Court dated 31.8.2007. Learned counsel for respondent No.1 has further pointed out that the petitioners have not disclosed that they had already cross-examined the plaintiff on 21.8.2007, which runs into 5 pages and then on 31.8.2007, which is placed on record as Annexure RW1/2 with application No.3190-CII- 2010. It is also submitted that the litigation is being looked after by Sanjeev Goyal (petitioner No.2), who was present at Ludhiana. In this regard, a substantial averment has been made in the para No.6 of the reply, which is not disputed by learned counsel for the petitioners. It is, thus, submitted that defendants have tried their level best since long to delay the proceedings as possible as they can do on one pretext or the other and are not interested in cross-examination. The plaintiff, who has appeared twice in the witness box for the purpose of cross-examination, in fact, has been cross-examined to large extent. It is also submitted that arguments raised by the counsel for the petitioners that they could not challenge the impugned order well within time only because of the reason that application for appointment of Arbitrator was pending before the Civil Court and was dismissed only on 1.4.2009 and the Revision thereof was dismissed by this Court on 4.12.2009 is misconceived. I have heard both learned counsel for the parties and have examined the available record as well. The undisputed facts are that the suit has been filed in the year 1993. 17 years’ have already expired. It is a suit where one of the partners has sought the dissolution of the firm and rendition of accounts. The learned trial Court while passing the impugned order has rightly observed that since 2004, the defendants are seeking dates CR No.7553 of 2009 (O&M) -5- on one pretext or the other in order to delay the disposal of the Suit and has been disposing of part of the property in dispute. It is also not disputed that the plaintiff has been twice cross-examined by the present petitioners and at the first instance when the cross- examination was deferred on 21.8.2007, there was no reason assigned. It is also brought to the notice of the Court as per Annexure R1/1 that plaintiff was available for cross-examination on 23.7.2007 but it was deferred because the Advocate appearing on behalf of the petitioners was not prepared to conduct the cross-examination and on his request case was adjourned for cross-examination for 1.8.2007 and at that time it was made clear that no further adjournment shall be granted for this purpose. Again on 01.8.2007, the cross-examination of PW1 was recorded partly but it was deferred on the request of Advocate, appearing on behalf of the petitioners and the witness was bound down for 10.8.2007. It was again made clear that on the next date of hearing no further adjournment shall be granted for this purpose. In any case, when the petitioners appeared for the cross- examination on 31.8.2007 he was partly examined but at that time a lame excuse was made that the brother-in-law of petitioner No.1 has died at Bombay as a result of which, petitioner No.1 has gone to Bombay and is not available whereas, as per the record of this Revision Petition, the present litigation is being pursued by Sanjeev Goyal, who has filed his affidavit and is also present in Court who was available at Ludhiana on 31.8.2007. Thus, taking into account the totality of circumstance, I do not find any merit in the present Revision petition besides the reason CR No.7553 of 2009 (O&M) -6- that the petitioner has not come to this Court with clean hands as he had suppressed the material facts about the cross-examination on 01.8.2007 and also on 31.8.2007. In view of the above, present Revision Petition is dismissed. (RAKESH KUMAR JAIN) February 11, 2010 JUDGE Vivek