C. R. No. 7616 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 7616 of 2009 Date of Decision : May 17, 2010 Subhash Chander and another .... Petitioners Vs. Neeraj Mittal .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashok Khunger, Advocate for the petitioners. None for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendants have invoked jurisdiction of this Court by filing instant revision petition under Article 227 of the Constitution of India assailing order dated 23.11.2009, passed by learned Civil Judge (Junior Division), Abohar, thereby dismissing application of the defendants under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure (in short – CPC), for recalling PW-1 Neeraj Kumar Mittal for cross- examination. Plaintiff-respondent Neeraj Kumar Mittal has filed suit for recovery against the defendants. The plaintiff appeared as his own witness C. R. No. 7616 of 2009 2 as PW-1 on 20.08.2007 and his examination-in-chief was recorded, but cross-examination was deferred on the request of counsel for defendants as the counsel had to peruse the affidavit of examination-in-chief and the documents. Thereafter, the plaintiff appeared on 13.02.2008 for cross- examination, but counsel for defendants did not appear for cross- examination of the witness and accordingly, the Court treated the cross- examination as `Nil'. Defendants moved application under Order 18 Rule 17 read with Section 151 CPC for recall of the said witness for cross- examination alleging that counsel for defendants was busy in some other Court on 13.02.2008 and therefore, could not appear in the trial court for cross-examination of plaintiff-respondent. The said application has been dismissed by the trial court by passing the impugned order. I have heard learned counsel for the petitioners and perused the case file, whereas no one has appeared for the respondent in spite of service. Learned counsel for the petitioners contended that counsel for the petitioners could not appear in the trial court on 13.02.2008 for cross- examination of plaintiff-respondent because the counsel was busy in some other Court and application for recall of order dated 13.02.2008 was moved on the same day for recall of the witness for affording opportunity of cross- examination to the defendants and therefore, the application should have been allowed. I have carefully considered the contention and find merit C. R. No. 7616 of 2009 3 therein. It is true that counsel for a party being busy in another Court may not be a ground for adjourning the case. However, at the same time, the party should not suffer. In the instant case, the defendants moved application for recall of witness on the same day i.e. on 13.02.2008. The trial court dismissed the said application on 23.11.2009 i.e. after a period of more than one year and nine months. If the application had been allowed immediately by the trial court, the suit would not have been delayed for almost two years unnecessarily. The application should be allowed subject to payment of cost so that the plaintiff is duly compensated and defendants also do not suffer. In view of the aforesaid, the impugned order of the trial court is unsustainable. The revision petition is accordingly allowed and impugned order of the trial court dated 23.11.2009 is set aside and application filed by the defendants for recall of plaintiff-respondent as PW-1 is allowed and trial court is directed to grant only one opportunity to defendants for cross- examination of the said witness, subject to payment of Rs.1,000/- as cost precedent, payable to plaintiff-respondent. May 17, 2010 ( L. N. MITTAL ) monika JUDGE