IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3284 of 2006 (O&M) Date of Decision : September 30, 2008 Virinder Kumar ….Petitioner Versus Kulbhushan Bhasin and another …..Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. J.S. Chahal, Advocate Mr. S.S. Swaich, Advocate T.P.S. MANN, J. Order passed by Civil Judge (Senior Division), Chandigarh on May 22, 2006, while over-ruling objection of the plaintiff-petitioner against the examination of one Brij Mohan, Assistant Engineer from Estate Office as a witness of Kulbhushan Bhasin/defendant-respondent, has been challenged in the present revision filed under Article 227 of the Constitution of India. Suit had been filed by the petitioner so as to restrain Kulbhushan Bhasin and his attorney Rachhpal Singh from proceeding with the construction of House No. 1314, Sector 44-B, Chandigarh without first paying 50% share of the common wall to the petitioner, who had already constructed his adjoining House No. 1315, Sector 44-B, Chandigarh. Mandatory injunction was also sought to the effect that as plinth level, beams, lintel, sky-line beam and the floors constructed at a level much higher than the petitioner's house was not in accordance with the provisions of the Capital Project Act, 1952, and that the Capital (Development and Regulations) Building Rules, 1952, and that the building plan approved by the Chandigarh Administration in respect of House No. 1314, Sector 44-B, Chandigarh was against the provisions of the Act, the rules and the building bye-laws, therefore, the building on plot No. 1314, Sector 44-B, Chandigarh be demolished so that it may not have permanent adverse affect on the petitioner's house already constructed. In the said suit, the petitioner had also arrayed Estate Officer, Chandigarh Administration and the Executive Engineer, Public Health, Division No. 3 as defendants No. 3 and 4, respectively, who filed a written statement but did not put in appearance thereafter. They were, accordingly, proceeded against ex parte. After the evidence of the plaintiff was concluded, the present respondents, who were defendants No. 1 and 2 in the suit, started leading their evidence. They summoned the concerned official from the office of Estate Officer, Chandigarh Administration and Executive Engineer, Public Health, Division No. 3, along with record, regarding plinth level of House No. 1314, Sector 44-B, Chandigarh in the name of Kulbhushan Bhasin. When Brij Mohan, Assistant Engineer from the Estate Office came present before the learned trial Court, an objection was taken on behalf of the plaintiff/petitioner to his examination as a witness on the ground that the Estate Officer had already been proceeded against ex parte and, therefore, the Assistant Engineer from the Estate Office could not be examined as a witness. The objection was over-ruled by the learned trial Court by passing the impugned order, which led to the filing of the present revision. I have heard learned counsel for the parties and perused the impugned order. There is no denial of the fact that the Estate Officer, Chandigarh Administration and the Executive Engineer, Public Health, Division No. 3, defendants No. 3 and 4, respectively had been proceeded against ex parte before the learned trial Court on the ground that they had not put in appearance after the filing of the written statement. However, that could not put any restraint on the other defendants, i.e. present respondents No. 1 and 2 to summon any witness in support of their plea as set up in their written statement. In that direction they could rightly summon Brij Mohan, Assistant Engineer from the Estate Office. Mere fact that said Brij Mohan was working as an Assistant Engineer in the Estate Office was no ground to object to his presence/appearance before the learned trial Court as he had been cited as a witness by defendants No. 1 and 2/respondents. Therefore, learned trial Court was justified in holding that the objection raised by the plaintiff against the examination of Brij Mohan, Assistant Engineer, carried no weight. Resultantly, there is no merit in the present revision, which is, accordingly, dismissed. Before parting with the case, one miscellaneous application, i.e. C.M. No. 572-CII of 2008 filed by the petitioner also needs to be looked into. The petitioner has prayed therein that Kulbhushan Bhasin- respondent was impleaded by the plaintiff-petitioner in the suit as defendant No. 1 and was to be represented by Shri Rachhpal Singh, who was holding General Power of Attorney from him. Said Kulbhushan Bhasin has died in the month of March, 2004 and as such Rachhpal Singh ceased to act as his attorney. Even otherwise, learned counsel, who had been representing respondent No. 1, was required to communicate to this Court about the death of Kulbhushan Bhasin, besides bringing on record his legal heirs. Therefore, a direction be issued to the learned counsel for respondent No.1 in this regard. Notice of the said application was issued and a reply was, thereafter, filed by way of affidavit of Rachhpal Singh, who himself is one of the defendants-respondents. He stated therein that Kulbhushan Bhasin had executed a registered Will dated 3.3.1987, besides General Power of Attorney and other documents in his favour in respect of House No. 1314, Sector 44-B, Chandigarh. On the basis of the said Will, the house in question has already been transferred in his name, i.e. Rachhpal Singh on 21.3.2006 by the Estate Officer, Chandigarh Administration, Chandigarh and after the said transfer, he had become the owner of the said house for all intents and purposes. After such a transfer, the name of Kulbhushan Bhasin-respondent No. 1 was liable to be deleted from the array of respondents. In any case, the application filed by the petitioner should be dismissed. The Court has been informed that an identical application has been filed by the plaintiff-petitioner before the learned trial Court and similarly, an identical reply has been filed by Rachhpal Singh defendant- respondent No. 2. As the main revision has been dismissed for the reasons mentioned above, therefore, the interim order passed by this Court in the revision on June 05, 2006, while staying further proceedings before the learned trial Court, stands vacated. As the proceedings before the learned trial Court get revived, the said Court would consider the aforementioned application and the reply and dispose of the same on merits. Therefore, no orders are required to be passed by this Court on C.M. No. 572-CII of 2008 and the same is, accordingly, disposed of. ( T.P.S. MANN ) September 30, 2008 JUDGE satish