C.R. No. 3097 of 2010 -1- ****** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 3097 of 2010 (O&M) Date of Decision : 06.07.2010 Rajwant Singh .......... Petitioner Versus Jaspreet Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Munish Jolly, Advocate for the petitioner. Mr. Jagnahar Singh, advocate for respondents No. 1 to 4. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 16558-CII of 2010 C.M. is allowed, zimini orders are taken on record. C . R. No. 3097 of 2010 The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the orders dated 4.2.2010 and 10.4.2010 passed by the learned Civil Judge (Jr. Divn.), Rajpura vide which his application to recall DW-3 & DW-5 for cross-examination stands declined. The petitioner / plaintiff closed his evidence on 30.11.2009, and the case was adjourned to 7.12.2009, with a direction to the defendant / respondents to conclude their evidence by availing three effective opportunities. On the date fixed i.e. C.R. No. 3097 of 2010 -2- ****** 7.12.2009, three DWs were present who tendered into evidence their affidavits in examination-in-chief, and the case was adjourned to 12.12.2009. On the said date, two of the DWs, who were present in the Court, were cross-examined and their evidence was concluded, and for remaining evidence the case was adjourned to 18.12.2009. On the said date DW-4 & DW-5, who were present in Court, tendered their affidavits in examination-in-chief, and the case was adjourned to 8.1.2010 for their cross-examination, on the request of learned counsel for the plaintiff / petitioner. On the next date fixed, one out of the two witnesses was present, however, he was not cross-examined and on the request of learned counsel for the plaintiff case was adjourned to 19.1.2010. On the said date, no witness from the side of the defendant / respondent came present, and the case was adjourned to 28.1.2010. Again on the date fixed, no DW was present, and the case was adjourned to 4.2.2010. On the said date, though the witnesses were present since morning but they were not cross-examined by the plaintiff, as the learned counsel for the plaintiff / petitioner did not appear . The learned trial Court passed the following order on 4.2.2010 :- “DW3 Jaswinder Singh and DW5 Mohinder Singh are present since morning but ld. Counsel for the plaintiff did not turn up for cross examination despite repeated request since morning. So cross C.R. No. 3097 of 2010 -3- ****** examination of both the DWs is ordered to be nil at 3.00 PM as circumstances detailed in the statement of aforesaid witnesses. Thereafter, at 3.10 PM ld. Counsel for the plaintiff appeared and stated that he is ready to cross examine the witnesses but cross examination was already ordered to be nil at that time then he stated that he requested in the morning and due to fact of strike by Advocates also he did not appear. But from the perusal of the resolution passed by the Bar Members it would reveal that Advocates have suspended work due to death of father- in-law of Mrs. Savita Attri Advocate and sister-in-law of Sh. Kulwant Singh Bombay, Advocate. Ld. Counsel for the defendant tendered into evidence some documents and closed his evidence. None appeared on behalf of defendant No.5 and from the perusal of the file it reveals that he did not examine any witness as major portion of evidence of the parties already concluded. So in these circumstances one opportunity is granted to defendant No.5 for leading the evidence, if any by 11.2.10. Sd/- Amit Kumar Garg CJJD / 04.02.2010” As cross-examination was treated to be nil, the petitioner moved an application for recalling the order dated 4.02.2010, for the reason, that counsel for the petitioner was not present in the Court C.R. No. 3097 of 2010 -4- ****** due to death in the family of an Advocate, as the counsel for the petitioner had gone to attend the last rites. The application stands declined. The learned counsel for the petitioner challenged the impugned order by contending, that the order is very harsh and the petitioner has been made to suffer for the lapse, if any, on the part of the counsel, specially when reasonable explanation for absence was shown, therefore, the impugned order cannot be sustained. The learned counsel for respondents No.1 to 4 supported the order by contending, that the petitioner moved the application after the evidence was closed, therefore, an attempt was made to delay the proceedings. Therefore the application filed was not bona fide. The petitioner had failed to cross-examine the witnesses though the case was called number of times. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. The proceedings reproduced above, would show that the petitioner / plaintiff could not be said to be negligent, as on two occasions, it was the witnesses of the defendant / respondent, who failed to appear, though, the counsel for the plaintiff was ready to cross-examination. Absence of the counsel on the date when the witnesses were present was not intentional, but for the reasons beyond his control, this fact was disclosed to the learned Court and has been recorded in the order. The order impugned, therefore, is very harsh and if allowed to stand would defeat the interest of justice. C.R. No. 3097 of 2010 -5- ****** For the reasons stated, revision petition is allowed, the impugned order is set aside. The plaintiff is granted one opportunity to cross-examine DW3 & DW-5 on the date to be fixed by the learned trial Court i.e. the date on which the learned trial Court is directed to summon those witnesses. Revision allowed. No costs. 06.07.2010 (VINOD K. SHARMA) 'sp' JUDGE