C.R. No. 6724 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 6724 of 2009 Date of Decision: November 18, 2009 Rama Nand …..Petitioner Vs. The Financial Commissioner and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Deepak Sharma, Advocate for the petitioner. -.- M.M.S. BEDI, J. (ORAL) Plaintiff has filed a suit for damages against the defendant- respondents on the allegation that he had been involved in frivolous departmental proceedings. Vide impugned order, he has been denied an opportunity to recall defendant Prabhu Dayal, who was examined-in-chief on October 8, 2009 for the reasons that he is 70 years of age; suffering from paralysis and is incapable of walking or standing; recalling would result in unnecessary harassment to the witness; non-examination in cross by counsel C.R. No. 6724 of 2009 [2] for the defendants was unreasonable; the witness has been residing at a far of place i.e. in Rohtak and the suit being one of the oldest cases identified for expeditious disposal under the Scheme of Samadhan 2009. Counsel for the petitioner has submitted that defendant DW2 Prabhu Dayal could not be cross-examined on the day when he came to the Court on October 8, 2009 as the counsel representing the plaintiff had gone to attend another case at Ambala. After hearing counsel for the petitioner and considering the grounds on which the cross-examination has been recorded as “nil opportunity given”, it appears that the order refusing the application for recalling defendant No.4 for cross-examination is a well reasoned order but since it is claimed that the cross-examination could not be conducted for absence of Advocate, without expression of any opinion regarding the validity of said plea, in the interest of justice, defendant- respondent No.4 can be recalled for cross-examination subject to payment of a reasonable cost. It can also not be ignored that though the plaintiff- petitioner has filed a suit for damages for harassment, at the same time he has also been able to harass respondent No.4 w.e.f. year 2005 i.e. for a period of 4 years by filing a suit against him. Taking into consideration the totality of the circumstances, and the health conditions of defendant- respondent No.4, it is ordered that the plaintiff-petitioner will deposit a sum of Rs.20000/- in the trial Court within a period of one week in order to enable the defendant- respondent No.4 to meet the expenses of traveling all the way from Rohtak to Kaithal. In case the said amount is deposited, the trial Court will fix a C.R. No. 6724 of 2009 [3] date for cross-examination of defendant- respondent No.4. Subject to the physical conditions of defendant No.4, he will be called in the Court. The amount of Rs.20000/- deposited by the plaintiff in the Court will be handed immediately to the defendant- respondent No.4 on his arrival in the Court and opportunity will be given to the counsel for the plaintiff to cross- examine the defendant- respondent No.4. It is made clear that in case a sum of Rs.20000/- is deposited and the Court is satisfied that it is not possible for the defendant to travel from Rohtak to Kaithal, it will be open to the Court to exercise jurisdiction under the provisions of Order 26 CPC to order for cross-examination of respondent No.4 on commission. It is made clear that the abovesaid exercise will only be undertaken if a sum of Rs.20000/- is deposited by the plaintiff within a period of one week. In case of non- deposit of amount, this petition will be deemed to have been dismissed. Disposed of. Order dasti on payment of usual charges. November 18, 2009 (M.M.S.BEDI) sanjay JUDGE