Civil Rivision No.7396 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL REVISION NO.7396 OF 2010 DATE OF DECISION: DECEMBER 14, 2010 Raj Kaur and others .... Petitioners VERSUS Inderjit Kaur and others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Ashish Aggarwal, Advocate for the petitioners. **** L.N. MITTAL, J. (ORAL) Plaintiffs have filed instant revision petition under Article 227 of Constitution of India assailing order dated 01.06.2010 Annexure P-5 passed by learned Civil Judge (Junior Division), Karnal, thereby disposing of applications Annexures P-3 and P-4 moved by contesting defendant Nos.1 and 2. Plaintiffs are sisters of proforma defendant Nos.3 to 6. Defendant Nos.1 and 2 are the only contesting defendants. The case was fixed for evidence of defendants on 03.09.2009. On that date, proforma defendant Nos.3, 5 and 6 stepped into the witness box and were examined in chief by way of affidavits and were cross-examined on behalf of plaintiffs only. No opportunity for their cross-examination on behalf of defendant Nos. 1 and 2 was given. Counsel for defendant Nos.3 to 6 closed their evidence. However, oral evidence of defendant Nos. 1 and 2 was closed by Court order and case was adjourned for tendering documents only on behalf of defendant Nos.1 and 2. Defendant Nos.1 and 2 moved application Annexure P-3 for permission to cross-examine proforma defendant Nos.3, 5 and 6 who had Civil Rivision No.7396 OF 2010 -2- appeared as witnesses. It was alleged that interest of proforma defendant Nos.3 to 6 is clashing with interest of contesting defendant Nos.1 and 2. Defendant Nos.1 and 2 also moved application Annexure P-4 for additional evidence alleging that two witnesses i.e. the then Reader of the Court and a Clerk of Sub-Divisional Magistrate had been summoned through court and their statements were required to be recorded. Learned trial court vide impugned order Annexure P-5 allowed both the aforesaid applications subject to payment of Rs.500/- as cost. Feeling aggrieved, plaintiffs have filed the instant revision petition. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners vehemently contended that counsel for defendant Nos.1 and 2 did not press for opportunity for cross- examination of proforma defendant Nos.3, 5 and 6 when they appeared in the witness box and, therefore, they were now not entitled to opportunity for their cross-examination. The contention cannot be accepted. As noticed hereinbefore, defendant Nos.3 to 6 are proforma defendants being real brothers of plaintiffs. Only defendant Nos.1 and 2 are contesting the claim of the plaintiffs. Interest of defendant Nos.1 and 2 is thus clashing with interest of proforma defendant Nos.3 to 6 whose interest is identical with interest of the plaintiffs. In this view of the matter, it was incumbent on the trial court to have afforded opportunity of cross-examination of proforma defendant Nos. 3, 5 and 6 to defendant Nos.1 and 2. But admittedly no such opportunity was granted to defendant Nos.1 and 2, when proforma defendant Nos. 3, 5 and 6 appeared in the witness box. In these circumstances, the trial court by impugned order has righly granted opportunity to defendant Nos.1 and 2 to cross-examine the Civil Rivision No.7396 OF 2010 -3- proforma defendant Nos.3, 5 and 6. Learned counsel for the petitioners also contended that additional evidence could not be permitted when oral evidence of defendant Nos. 1 and 2 had been closed by court order dated 03.09.2009, which order was not challenged by defendant Nos.1 and 2. Reliance in support of this contention has been placed on judgments of this Court in Chand Singh versus Naranjan Singh, 1990(1) Latest Judicial Reports 719 and Bhim Raj Versus Jai Bhagwan, (P&H) 2000(3) RCR (Civil) 16. This contention although apparently attractive also cannot be accepted in view of peculiar circumstances of the instant case. Defendant No.1 and 2 had moved an application in the trial court on 03.09.2009 praying for adjournment alleging that their counsel was not present as she had been attending her son who had met with an accident and was admitted in hospital. The said application was thumb marked by defendant No.1 and has not been signed by any counsel. It would depict that counsel for defendant Nos.1 and 2 was not present in the trial court on 03.09.09 because her son had met with accident and was admitted in hospital. It is correct that zimini order dated 03.09.09 of the trial court as reproduced at page 10 of the paper book reveals that presence of Smt. Raj Dammi as counsel for defendants Nos.1 and 2 has been recorded. However, application dated 03.09.2009 moved by defendant Nos.1 and 2 seeking adjournment on the ground that their counsel was not present, has not been dealt with by the trial court in order dated 03.09.2009. In these peculiar circumstances, additional evidence has rightly been allowed by the trial court on payment of cost. It may be added that the witnesses sought to be examined in additional evidence are official witnesses and they had already been summoned through court by furnishing process fee and diet money. Civil Rivision No.7396 OF 2010 -4- It may also be added that substantial justice has been done by the trial court by passing the impugned order. The discretion exercised by the trial court is not required to be set aside by this court in exercise of revisional jurisdiction when there has been no miscarriage of justice. It may be added that the instant revision petition has been filed after long delay of more than five months after the passing of the impugned order and the revision petition is thus also hit by delay and laches. For the reasons aforesaid, I find no ground to interfere with the impugned order of the trial court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine. (L. N. MITTAL) JUDGE December 14, 2010 'raj'