C.R. No. 4037 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 4037 of 2009 Date of Decision : 20.11.2009 Pritpal Singh .......... Petitioner Versus Tejinder Pal Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. P.S. Bhangu, Advocate for the petitioner. Mr. S.S.Rangi, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 14.5.2009, passed by the learned Addl. Civil Judge ( Sr. Divn.), Khanna vide which application moved by the petitioner for recalling the witnesses of the plaintiff for cross-examination, has been declined. The witnesses of the plaintiff were present on three occasions but could not be cross-examined for want of availability of his counsel. The cross-examination was ordered to be treated to be nil, and the evidence of the plaintiff was closed. Application moved by the petitioner for recalling those witnesses to cross-examine them, was declined on the ground that the C.R. No. 4037 of 2009 2 petitioner was granted sufficient opportunities to cross-examine the witnesses but the petitioner failed to cross-examine them for the reasons best known to him. The operative part of the impugned order reads as under :- “The perusal of the file shows that three witnesses of the plaintiff tendered affidavit on 28.4.2006. For their cross-examination, the case was adjourned to 6.11.2006, on that date an application was moved by learned counsel for the defendant for granting adjournment. The case was adjourned to 22.2.2007 on that date, learned standing counsel for the defendant was not available. The case was then adjourned to 4.5.2007 on the request of learned proxy counsel for defendant. On 4.5.2007, three witnesses of the plaintiff were present for cross-examination, but again, learned counsel for the defendant was stated to be out of station. Request of Clerk of learned counsel for the defendant was declined by my learned predecessor and the cross- examination of the witnesses of the plaintiff was deemed to be 'nil”. A well reasoned detailed order was passed by my learned predecessor to this effect. From the history of the case,it is evident that the defendant availed sufficient opportunities to cross-examine the witnesses of the plaintiff, but failed to cross-examined them for the reasons best known to him nor any appeal against the order dated 4.5.2007 was preferred by the defendant. Now, recalling of the witnesses C.R. No. 4037 of 2009 3 for cross-examine would amount to recalling its order by this Court. The application under reference is without any substance and the same is dismissed. Now for evidence of defendant, to come up on 4.6.2009.” The learned counsel for the petitioner does not challenge the impugned order on merit and prays that in the interest of justice petitioner be granted only one last opportunity to cross-examine the witnesses examined by the plaintiff. The learned counsel for the respondent has strongly opposed the grant of additional opportunity to the petitioner to cross-examine the witnesses of the plaintiff / respondent. On consideration this court feels party should not be allowed to suffer for the fault of the counsel. The witnesses were not cross-examined for want of availability of counsel for the petitioner. Furthermore, in view of the stand taken by the learned counsel for the petitioner and keeping in view the fact that injustice would be caused to the petitioner for want of cross- examination of the witnesses examined by the plaintiff, it would be in the interest of justice, if the witnesses examined by the defendant / respondent are recalled for cross-examination, and the plaintiff /respondent can be compensated with costs, for the inconvenience caused. Therefore, without giving any opinion on the merits of the case, this Court feels that interest of justice would be served, if the petitioner is granted one final opportunity to cross-examine the witnesses examined by the plaintiff / respondent, on the date to be fixed by the learned trial Court, C.R. No. 4037 of 2009 4 by recalling the witnesses, whose affidavits in examination-in-chief have been tendered by the plaintiff / respondent. “Ordered accordingly”. However, this shall be subject to payment of Rs. 5,000/- ( Rupees five thousand only ) as costs. Revision disposed of. 20.11.2009 ( VINOD K. SHARMA ) 'sp' JUDGE