IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 6698 of 2011 (O&M) Date of decision: December 22, 2011 Sushil K. Bhardwaj .. Petitioner Vs. Gopi Chand and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sanjay Vij, Advocate for the petitioner. Mr. Vipin K. Saini, Advocate for respondent No.3. A.N. Jindal, J (Oral) As per office report, notice issued to the respondents have not been received back either served or otherwise. Mr. Vipin K. Saini, Advocate has put in appearance on behalf of respondent No.3. Service of the remaining respondents is dispensed with for the time being. The petitioner has invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 1.10.2011 (Annexure P1) passed by the trial court. After the defendant tendered his witness Tula Ram (DW3) and examined him in part, he preferred to withdraw him saying that he does not want to examine him further. The trial court allowed his request and turned out the objections raised by the plaintiff and discharged the witnesses. As such, plaintiff is in revision. Arguments raised by him is that once the witness has been tendered for examination and his part examination has been recorded, the parties examining could not withdraw him at that stage. Before commenting upon the legal proposition, the impugned order dated 1.10.2011 is reproduced as under :- “Three D Ws Amit, Gopi Chand and Tula Ram are present. Amit cross examined. DW Gopi Chand examined. DW3 Tula Ram partly examined. During his examination in chief learned counsel for the defendant stated that he does not want to Civil Revision No. 6698 of 2011 (O&M) -2- *** examine further this witness and accordingly the said witness was given up by the learned counsel for the defendant. Learned counsel for the plaintiff raised objection that this witness can not be given up after recording his part examination in chief. Heard. Since defendant does not want to examine DW-3 further therefore he can not be compelled to examine this witness. No other DW is present. Despite last opportunity. Perusal of case file reveals that several effective opportunities including last opportunity have already been granted to the defendant till defendants have failed to conclude their entire evidence. Hence defendant evidence is closed by court order. Now to come up on 5.11.2011 for rebuttal evidence if any and arguments.” The order reveals that first Tula Ram was tendered in examination and thereafter when he did not support the defendant's case, the defendant withdrew him before his examination was completed and was cross- examined. The order appears to be not in consonance with any provisions of law. The settled principles of law as laid down in the Indian Evidence Act impel me to observe as under :- i) The party examining the witness is the dominus litis and it is his choice as to examine the witness or not. ii) The witness when once partly examined comes into the hands of the court and thereafter it cannot be given up in the way. iii) If the witness does not support the case of the party examining, the said witness could be declared hostile and he (party examining) could be permitted to cross examine him by putting leading questions to the witness. After such cross examination is conducted over the hostile witness, the adversaries had the right to cross- examine him. Civil Revision No. 6698 of 2011 (O&M) -3- *** This court, in case Smt. Sodhan vs. Faquir Singh and another, (1986-2) Punjab Law Reporter 371 observed as under :- “2. One Kehar Singh Lambardar was produced as a witness by the defendant. After the oath had been administered to him and his statement partly recorded, he was allowed to be given up on the plea of the defendants that he had been won over and it was directed that his statement be not read in evidence. Counsel for the plaintiff instead sought permission to cross- examine the witness. This request was declined on the ground that the witness had already been given up and his evidence ordered to be treated as non existent. There is no provision of law that counsel for the respondents could point to support or justify this order. This being so, there can be no escape from the conclusion that the procedure adopted by the trial court was one wholly unknown to law and the impugned order must thus be set aside as being blatantly contrary to law.” Thus, I also find myself strengthened from the aforesaid view taken by this court earlier. Accordingly, the impugned order also being perverse and against the mandatory principles of law deserves to be reversed. Resultantly, this petition is allowed, impugned order is set aside and the defendant is directed to tender the witness i.e. DW3 Tula Ram in the court for further examination. On failure to produce the witness to facilitate the court to proceed in accordance with law, adverse inference would be drawn against him. December 22, 2011 (A.N. Jindal) deepak Judge