C.R. No. 5339 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5339 of 2009 Date of Decision: 16.09.2009 M/s Bachan Lal and Company, through its Proprietor Sh. Bachan Lal, s/o Sh. Ved Prakash, Near Railway Colony Nanga Road Ropar, Tehsil and District Ropar. ... Revision-Petitioner Versus 1. The State of Punjab, through Secretary, PWD (B&R) Punjab, Chandigarh. 2. The Collector, Ropar, District Ropar. 3. Executive Engineer, PWD (B&R), Rural Work Division Ropar, District Ropar. 4. Sh. Sital Parshad, Junior Engineer, Central Works Sub Division, Ropar, Punjab. 5. Sh. Mohan Singh, SDO Link Roads PWD (B&R), Sub Division Ropar, District Ropar. 6. Sh. Harmohinder Jit Singh, Junior Engineer, Rural Works Division PWD (B&R), Moga, District Moga. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Parampreet Singh Paul, Advocate, for the revision-petitioner. SHAM SUNDER, J. * * * * This revision-petition under Article 227 of the Constitution of India, is directed, against the order dated 26.08.09, rendered by the Court of C.R. No. 5339 of 2009 2 Civil Judge (Senior Division), Ropar, vide which, the application, moved by the plaintiff/revision-petitioner, to allow it, to cross-examine Sital Parshad, DW, whose cross-examination, was treated as nil, vide order dated 09.06.09, was dismissed. 2. The plaintiff/revision-petitioner, filed a civil suit, for recovery of Rs. 10,97,350/-, with interest, for the execution of work of repair of link road, from NH-21 (Bharatgarh to Kakrala). 3. The plaintiff/revision-petitioner, led evidence. Thereafter, the case, was fixed, for the evidence of the defendants. Sital Parshad, one of the witnesses, on behalf of the defendants, tendered, his affidavit, in the shape of examination-in-chief, and thereafter, a number of opportunities, were granted to the plaintiff/revision-petitioner, to cross-examine him, but when its Counsel failed to cross-examine him, left with no alternative, his cross- examination, was treated as nil. 4. Thereafter, an application, was filed by the plaintiff/revision- petitioner, for recalling Sital Parshad, DW, for the purpose of his cross- examination, on the ground, that the Counsel for the plaintiff, was busy, in some other Court, and when he came to the concerned Court, where the suit, was pending, the witness, had already been discharged, at 3.00 PM. 5. The application, was opposed by the defendants/respondents, stating therein, that the witness, was present, on a number of dates, but he was not cross-examined, by the Counsel for the plaintiff/revision-petitioner intentionally and deliberately. It was further stated that, there was, therefore, no alternative with the Court, than to treat the cross-examination of Sital Parshad, DW, as nil. It was further stated that the order dated 09.06.99, being legal, was liable to be upheld. C.R. No. 5339 of 2009 3 6. Ultimately, the application was dismissed, vide the order impugned. 7. Feeling aggrieved, the instant revision-petition, has been filed, by the plaintiff/revision-petitioner. 8. I have heard the Counsel for the revision-petitioner, and have gone through the documents, on record, carefully. 9. The Counsel for the revision-petitioner, submitted that, out of ten opportunities, for the cross-examination of Sital Parshad, DW, granted to the plaintiff/revision-petitioner, on four dates, the said witness, was not present, for the aforesaid purpose. He further submitted that, on two dates, the Counsel for the plaintiff/revision-petitioner, could not appear, for one reason or the other reason. He further submitted that there was no intentional or deliberate default, on the part of the plaintiff/revision- petitioner, in cross-examining Sital Parshad, DW. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for revision-petitioner, in my considered opinion, the revision-petition is liable to be dismissed, for the reasons to be recorded, hereinafter. It is evident from para 4 of the impugned order, that as far back, as on 12.06.07, Sital Parshad, a witness of the defendants, tendered his affidavit, in the shape of examination-in-chief. Copy of the affidavit, was supplied, to the Counsel for the plaintiff/revision-petitioner, and his cross-examination, was deferred to 02.08.07. On 02.08.07, Sital Parshad, DW, remained present, for the purpose of his cross-examination, but the Counsel for the plaintiff/revision-petitioner did not appear, till 3.10 PM, and, as such, the case, was adjourned to 18.09.07, on the request of the proxy Counsel for the plaintiff/revision-petitioner. Last opportunity, was C.R. No. 5339 of 2009 4 granted to the plaintiff/revision-petitioner, for the cross-examination of this witness. The case, was taken up, on 17.09.07, as the Presiding Officer, was to go to Ferozepur, for Court evidence, and it was adjourned to 14.11.07, for the purpose of cross-examination of Sital Parshad, DW. On 14.11.07, Sital Parshad, DW, was present, for cross-examination, but again, the Counsel for the plaintiff/revision-petitioner, was not available, due to the death of his brother, and, in the interest of justice, the case, was adjourned to 16.01.08, for the cross-examination of Sital Parshad, DW. On 16.01.08, Sital Parshad, DW, came present for his cross-examination, but, on the request of the witness, the case, was adjourned. Again, on 08.09.08, Sital Parshad, DW, came present, for his cross-examination, but he was not cross- examined, by the Counsel for the plaintiff/revision-petitioner, and the proxy Counsel for Mr. H.S. Paul, Advocate, sought a date, on the ground, that he (Mr. H.S. Paul, Advocate), had gone to Mohali. The case, was adjourned to 21.10.08, for the cross-examination of Sital Parshad, DW. On 21.10.08, again Sital Parshad, DW, came present, but, he was not cross-examined, by the Counsel for the plaintiff/revision-petitioner, on the ground, that he had not brought the complete record. The case, was then adjourned to 21.11.08. On 02.02.09, Sital Parshad, DW, came present, but he was again not cross- examined by the Counsel for the plaintiff/revision-petitioner, as he was stated to be ill. On 02.02.09, it was made clear that, if the Counsel for the revision-petitioner, did not cross-examine Sital Parshad, DW, his cross- examination, shall be treated, as nil. Thereafter, the case, was adjourned. On 24.04.09, Sital Parshad, DW, came present, but Mr. H.S. Paul, Counsel for the plaintiff/revision-petitioner, was not present, and the case, was adjourned to 09.06.09, for the cross-examination of Sital Parshad, DW. On C.R. No. 5339 of 2009 5 09.06.09, Sital Parshad, DW, was present, for the purpose of his cross- examination, from 10.00 AM onwards. The Junior Counsel of Mr. H.S. Paul, Advocate, had been assuring the Court, that Mr. H.S. Paul, Advocate, would be coming, within ten minutes, for cross-examination, but he did not appear, till 3.30 PM. It was, under these circumstances that, the cross-examination of Sital Parshad, DW, on 09.06.09, was treated, as nil. From the aforesaid discussion, it is evident, that a number of opportunities, right from 12.06.07, when the affidavit of Sital Parshad, in the shape of examination-in-chief, was tendered, till 09.06.09, were granted to the plaintiff/revision-petitioner, for his cross-examination, but its Counsel, did not cross-examine him. If, for a period of about two years, the Counsel for the plaintiff/revision-petitioner, failed to cross-examine a witness of the defendants, then, in my opinion, no alternative, was left with the Court, than to treat his cross-examination, as nil. This clearly shows, that the Counsel for the revision-petitioner, intentionally and deliberately, did not cross- examine this witness, but, on the other hand, continued getting dates, on one ground or the other. It is only, on account of such type of unnecessary adjournments, which are sought by the Counsel for one or the other party and granted by the Court, that the disposal of the cases, is delayed. The plaintiff/revision-petitioner, very well knew, that the Court, could not grant dates just, at the asking of the Counsel, for a number of years, for the purpose of cross-examination of a witness. Even then, the plaintiff/revision- petitioner, did not bother, to get cross-examined Sital Parshad, DW, by procuring the presence of his Counsel. In my considered opinion, the trial Court, granted too much indulgence, to the Counsel for the revision- petitioner, to cross-examine Sital Parshad, DW. When the Counsel for the C.R. No. 5339 of 2009 6 revision-petitioner, was adamant not to cross-examine Sital Parshad, DW, the Court had to pass an order, which may be treated as punitive. No doubt, on account of non cross-examination of this witness, hardship may be caused to the plaintiff/revision-petitioner, yet, this Court, cannot come to its rescue, as the order dated 09.06.09, had to be passed, by the trial Court, in view of the circumstances, created by it, or its Counsel. The order impugned, does not suffer from any illegality, material irregularity or perversity, warranting interference, by the Court, in exercise of its revision jurisdiction under Article 227 of the Constitution of India. The revision- petition, is liable to be dismissed. 11. For the reasons recorded above, the revision-petition, being devoid of merit, is dismissed. 16.09.2009 (SHAM SUNDER) Amodh JUDGE