C.R.No.7782 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.7782 of 2010 Date of decision: 07.1.2011 Manjinder Pal Singh ….Petitioner Vs. Manjit Kaur and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. I.S. Parmar, Advocate for the petitioner. Mr. Damandeep Singh, Advocate for respondent Nos.1 to 3. Jaswant Singh, J By filing the instant petition under Article 227 of the Constitution, the petitioner is impugning order dated 15.11.2010 (P.1) passed by the learned Civil Judge (Jr. Divn.), Ludhiana whereby evidence of the plaintiff-petitioner has been closed by order. The plaintiff-petitioner had filed a suit No.287/28.7.2000 through his counsel Sh. P.K. Kohli. for mandatory injunction directing the defendants-respondents to vacate and deliver vacant possession of the house in dispute as described in the head note of the plaint. In this case, issues were framed on 17.3.2001. Plaintiff-petitioner submitted his evidence by way of an affidavit in the court on 12.11.2002 in which his cross was deferred for 24.1.2003 along with other Pws. Thereafter, at one stage the suit was dismissed under Order 9 Rule 8 CPC vide order dated 1.8.2004 by the learned trial Court but later on the same was restored. It is further alleged that counsel for the plaintiff, namely, C.R.No.7782 of 2010 #2# Sh.P.K. Kohli had died and the plaintiff-petitioner engaged another counsel namely, Sh. Devender Singh Saini, Advocate, who filed his power of attorney on 21.8.2009. Thereafter the plaintiff-petitioner produced his entire evidence before the learned trial Court, however, the cross- examination of the plaintiff-petitioner could not be conducted as the same had remained pending and deferred vide order dated 12.11.2002. Learned counsel contends that on account of death of earlier counsel of the plaintiff-petitioner and due to the inadvertence and communication gap with his new counsel, petitioner could not present himself for his cross examination, therefore, he prays that one more opportunity may be granted to him for the purpose aforesaid. On the other hand, learned counsel for the respondent Nos.1 & 3 has opposed the prayer made by the petitioner and defended the impugned order passed by the learned trial Court and submitted that the discretion exercised by the learned trial Court is perfectly legal and valid. Heard learned counsel for the parties. It is not in dispute that plaintiff-petitioner appeared as witness and tendered his affidavit on 12.11.2002 and his cross examination was deferred for 24.1.2003. It is also not disputed that earlier counsel representing the plaintiff-petitioner had tendered his affidavit by way of examination in chief on 12.11.2002 but later on he died without his cross examination. It is also not in dispute that the plaintiff-petitioner has concluded his entire evidence except his own cross examination and the explanation given in this regard seems to be believable. Keeping in view the facts and circumstances discussed hereinabove, this court finds that non-cross examination of the plaintiff- C.R.No.7782 of 2010 #3# petitioner is due to the inadvertence and communication gap between the plaintiff-petitioner and his counsel and the same is justified. In case, the opportunity of cross examination is not offered to the plaintiff-petitioner, his case shall be materially prejudiced. Accordingly, petition is allowed and the order dated 15.11.2010 passed by the learned Civil Judge (Jr. Divn.), Ludhiana is set aside while granting one effective opportunity to the plaintiff-petitioner to complete his cross examination. This is, however, subject to the payment of costs of Rs.12,000/- to be paid to the respondents in equal shares i.e Rs.4000/- each. January 7th, 2011 ( JASWANT SINGH ) manoj JUDGE