Civil Revision No.4504 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4504 of 2011 Date of Decision:27.07.2011 Meena Gupta ......Petitioner Versus Jaswinder Kaur .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Arun K.Bakshi, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) The matrix of the facts culminating in the commencement, relevant for disposal of the present revision petition and emanating from the record is, that Meena Gupta wife of Ashwani Gupta-petitioner-plaintiff(hereinafter to be referred as “the plaintiff) filed the suit for specific performance of the agreement dated 03.12.2004 against Jaswinder Kaur-respondent-defendant(for brevity “the defendant”) in respect of the land in question. Ashwani Gupta, her husband appeared in the Court as attorney of the plaintiff. 2. During the course of trial, the plaintiff moved an application for permission to appear as her own witness on the ground that due to ill health, she could not appear in the court and examined her attorney. But now, she intends to depose in the Court. On the basis of aforesaid allegations, the petitioner-plaintiff sought permission to step into the witness box, to prove her case in this context. 3. The claim of the petitioner-plaintiff was resisted by the respondent- defendant. She filed the reply and denied all the allegations contained in the application and prayed for its dismissal. The trial Court dismissed the application of the plaintiff by virtue of impugned order dated 28.04.2011. Civil Revision No.4504 of 2011 2 4. Aggrieved by the impugned decision of the trial Court, the petitioner- plaintiff preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India. 5. At the very outset, in exercise of power under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to the respondent- defendant, in order to save her from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit, particularly when she can be compensated with adequate costs in this regard. 6. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, the instant petition deserves to be accepted in this respect. 7. As is evident from the record that the petitioner-plaintiff filed the suit for specific performance of the agreement dated 03.12.2004 against the respondent-defendant. No doubt, she has already examined her husband as her attorney in the Court, but now she moved an application to permit her, to appear as a witness, to substantiate her claim. As is clear, the main ground which appears to have been weighed with the trial Court, while dismissing her application was, that since Ashwani Gupta, husband of the plaintiff has already deposed on her behalf and has proved the entire case, so, now she cannot be permitted to appear as her own witness. 8. Here, to my mind, the trial Court slipped into deep legal error in this relevant connection. Ex facie, it appears to be true, but it ipso facto is not a sufficient ground to deny the permission to the plaintiff in this relevant behalf. There is no legal bar that once the husband of the plaintiff has appeared as attorney, then the plaintiff cannot substantiate her case. Moreover, it is the plaintiff and not the attorney, who could effectively depose about the facts, which are in her personal knowledge. Above all, the examination of the plaintiff in the suit is essential, to decide the real controversy between the parties and is the legal Civil Revision No.4504 of 2011 3 requirement of fair trial. Therefore, the trial Court has committed the material, procedural irregularity and illegality and the impugned order cannot be maintained in the obtaining circumstances of the case. To me, if the opportunity is not granted to the plaintiff, then it will inculcate and perpetuate injustice to her case. Moreover, no prejudice is going to be caused to the respondent-defendant in this context, particularly when, she can be compensated with adequate costs in this relevant connection. More so, when the case is still fixed for evidence of the plaintiff. 9. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the suit, the instant revision petition is accepted. Consequently, the impugned order is hereby set aside. The trial Court is directed to permit the plaintiff, to appear as her own witness, to substantiate her case. However, this would be subject to the payment of Rs.10,000/- (Rupees Ten Thousand) as costs, to be paid by the plaintiff to the defendant. Needless to mention that, the trial Court would ensure the payment of costs personally to the defendant. The payment of costs would be a condition precedent to the further prosecution of the suit. The Registry is directed to send a copy of this order to the trial Court forthwith, for strict compliance. July 27, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Civil Revision No.4504 of 2011 4 C.M.No.17769-CII of 2011 in Civil Revision No.4504 of 2011 Present: Mr.Arun K.Bakshi, Advocate, for the petitioner. **** Application is allowed as prayed for. July 27, 2011 (MEHINDER SINGH SULLAR) seema JUDGE