IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR NO.3168/2009 Date of Decision: 28.5.2009. M/s Vikas Housing Building Co.(P) Ltd. ..........Petitioner. Versus Smt.Dalip Kaur and others ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Namit Gautam,Advocate for the petitioner. JASWANT SINGH,J(Oral). Prayer in the present petition filed by petitioner-defendant under Article 227 of the Constitution of India is for setting aside the order dated 2.4.2009 passed by the learned Civil Judge(Junior Division)Ludhiana, whereby cross examination of plaintiffs' witnesses has been closed by order of the court. For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondents-plaintiffs as the same would unnecessarily delay not only the disposal of the present petition but the suit as well. The proceedings in the present case arise out of a suit for permanent injunction filed by the respondents-plaintiffs seeking to restrain the petitioner-defendant from interfering or cause to interfere in peaceful possession of the respondents-plaintiffs over the suit land described in the plaint or from changing the nature of the same by way of raising construction CR NO.3168/2009 2 etc. A perusal of the paper book reveals that the said suit was instituted on 18.3.1999. After completion of the pleadings issues were framed on 22.12.1999 and the matter was adjourned to 20.1.2000 for consideration of temporary injunction application under Order 39 Rules 1 and 2 CPC and to supply the list of witnesses/documents. Despite numerous opportunities, respondents-plaintiffs did not produce any evidence nor arguments were addressed thereon. Ultimately after almost six years, one of the respondents- plaintiffs-Swaran Singh on 7.2.2006, made a statement that he does not press the application under Order 39 Rules 1 and 2 CPC. Accordingly, the stay application was dismissed as not pressed on 7.2.2006 and on the same day examination in chief of said Swaran Singh as PW-1 was recorded and the matter stood adjourned for his cross examination. Thereafter, no effective proceedings took place till 19.7.2007, as during the interregnum either PWs were not present or request for adjournment was made on behalf of petitioner- defendant or the Presiding Officer was on leave. On 19.7.2007 part cross- examination of PW1 Swaran Singh was recorded and he was bound down for 18.8.2007 for his remaining cross examination for want of original documents. Despite that Swaran Singh did not appear on various dates and ultimately on 6.3.2009, after part cross examination of said PW1-Swaran Singh, further cross was deferred as the court time was over and the petitioner-defendant was given last and final opportunity to cross examine PW1 on 2.4.2009 failing which the same was to be treated as nil. On 2.4.2009, though the PWs were present for their cross CR NO.3168/2009 3 examination but an adjournment was sought on behalf of the petitioner- defendant on the ground that its counsel was busy arguing an appeal before learned Additional District Judge, Ludhiana. However, the request for adjournment was declined and cross examination of PW1 Swaran Singh and PW2 Kulwinder Singh was closed by Court order as opportunity given. Examination nil. Hence the present revision petition impugning the order dated 2.4.2009. Learned counsel for the petitioner-defendant submits that keeping in view the enormous time of ten years taken by the respondents-plaintiffs in examining two witnesses, no prejudice would be caused to them if petitioner- defendant is granted just one effective opportunity to complete the remaining cross examination of PW1 Swaran Singh and to cross examine the other PW2 Kulwinder Singh. Learned counsel further submits that on account of the difficulty of the petitioner's counsel in the learned trial Court for not appearing on 2.4.2009, the case of the petitioner-defendant should not be allowed to suffer. Heard learned counsel and perused the paper book. It is quite settled that rules of procedure are handmaid of justice to advance the same and not to subvert it. Keeping in view the aforesaid fact that PW1-Swaran Singh has not appeared for his cross-examination on numerable occasions and the fact that PW2-Kulwinder Singh has appeared only on two occasions for his cross examination coupled with the fact that adjournment on 2.4.2009 was sought on account of the non-appearance of the counsel. In my considered opinion, it CR NO.3168/2009 4 would be in the interest of justice, if one opportunity is granted to the petitioner-defendant to cross examine the remaining two witnesses. Further in my opinion, the cause of the petitioner-defendant would be seriously prejudiced if it is not granted one last effective opportunity to complete the remaining cross examination of PW1 Swaran Singh and the other PW2 Kulwinder Singh. On the other hand no prejudice would be caused to respondents-plaintiffs, who firstly took six years to argue the temporary injunction application and thereafter in the next span of four years tendered affidavits of two PWs only. Moreover, they are being compensated by way of payment of costs. For the reasons stated above,present revision petition is allowed, impugned order dated 2.4.2009 (Annexure P/1) is set aside and petitioner is granted one last effective opportunity, at its own responsibility to complete the remaining cross examination of PW1 Swaran Singh (plaintiff No.3) and the other PW2 Kulwinder Singh(plaintiff No.5) on a date to be fixed by the learned Trial Court directing PW1 and PW2 to present themselves on the said date, subject to payment of Rs.10,000/- as costs, to be paid to the respondents- plaintiffs in equal shares of Rs.2,000/- each by way of demand drafts. It is further clarified that in case the respondent-plaintiffs are aggrieved by this order, they are at liberty to file an appropriate application for recalling of the same. 28.5.2009. (Jaswant Singh) joshi Judge