Civil Revision No.210 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.210 of 2011 (O&M) Date of Decision: January 13, 2011 Gurdial Singh .....Petitioner v. Jugraj Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Ramesh Chand Sharma, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.824-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.210 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 28.10.2010 passed by learned Civil Judge, Junior Division, Nakodar, vide which it has been ordered that statement of Naresh Kumar, Deed Writer, who was already examined by petitioner-plaintiff as PW3, be not taken into consideration. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Civil Judge, Junior Division, Nakodar. Brief facts relevant for the decision of present revision petition are that a civil suit was filed by petitioner-plaintiff for possession by way specific performance of agreement to sell dated 17.4.2000, in respect of land in dispute on the plea that defendant nos.1 and 3 and defendant no.3 as attorney for defendant nos.2 and 4, entered into an agreement to sell their land in favour of petitioner-plaintiff @ Rs.3.00 lac per acre and Rs. 3.00 lacs were also received by them as earnest money and however, the sale- deed was not executed as per the agreement, whereas petitioner-plaintiff Civil Revision No.210 of 2011 (O&M) -2- was always ready and is still ready to perform his part of contract. It is also contended that defendant No.5 is claiming that he had got the sale-deed executed in his favour from defendant nos.1 and 2 in respect of land measuring 16 kanals on 17.1.2003. It is also contended that defendant No.6, namely, Thakur Singh was later on impleaded as party in these proceedings on the assertion that an agreement to sell by Jugraj Singh-defendant no.1 regarding land measuring 6 kanals out of the total land was also executed in his favour and after his death respondent-defendant nos.6 to 10 were impleaded as his legal representatives. Respondent-defendant nos.1 to 4 were proceeded ex parte, however, the suit was contested by defendant nos.5 and 6, when an application for setting aside ex parte proceedings on behalf of defendant nos.1 to 4 was filed, which was allowed by learned trial Court vide order dated 5.8.2010, and the case was fixed for further cross examination of witnesses on behalf of respondent nos.1 to 4. Perusal of order dated 24.9.2010, passed by learned trial Court shows that PWs Jarnail Singh and Gurdial Singh were present and, however they could not be cross-examined as counsel for respondent-defendant nos.1 to 4 was not available and hence on his request, the case was adjourned for cross-examination of the witnesses as well as for remaining witnesses for 27.9.2010, on which date cross-examination was conducted on PWs Jarnail Singh and Gurdial Singh on behalf of respondent-defendant nos.1 to 4. However, an application was moved under Section 151 of the Code of Civil Procedure (hereinafter to be referred as the `Code') on behalf of the petitioner-plaintiff for getting the disputed signatures compared with the specimen signatures from some hand-writing expert and the case was adjourned to 29.4.2010 for reply and consideration of the said application. Simultaneously, an application was moved on behalf of the petitioner- plaintiff to summon witnesses, i.e., Naresh Kumar, Deed Writer and the concerned Clerk from the Tehsil Office. However, the said application was declined and no assistance was provided to petitioner-plaintiff to summon the witnesses. On 29.9.2010, reply to the application under Section 151 of the Code was filed and the case was adjourned to 14.10.2010 for consideration of that application. Thereafter, the case was adjourned to 28.10.2010, when the impugned order was passed. Perusal of impugned order dated 28.10.2010 shows that witness Civil Revision No.210 of 2011 (O&M) -3- Naresh Kumar, Deed Writer, PW3 was produced by the petitioner-plaintiff before the Court and offered for cross-examination by defendant nos.1 to 4. Cross-examination was also conducted on this witness on behalf of defendant nos.1 to 4, as is clear from Annexure P2, and however, after the completion of cross-examination on behalf of defendant nos.1 to 4, objection was taken that application for summoning the said witness for the purpose of cross-examination was declined by the Court and hence his statement be not taken on the record and on the said pryer, impugned order dated 28.10.2010 was passed ordering for taking off his statement from the record. In view of these facts, the impugned order cannot be sustained in the eyes of law, as the same is patently illegal. The witness was already examined when respondent-defendant nos.1 to 4 were proceeded ex parte. He was only to be cross-examined on behalf of respondent-defendant nos.1 to 4. The witness was produced by petitioner-plaintiff before the Court when the case was fixed for evidence of petitioner-plaintiff as well as for consideration of the application filed under Section 151 of the Code. The witness was also cross-examined on behalf of respondent-defendant nos.1 to 4. It is also mentioned in the impugned order that the case was fixed for evidence of plaintiff only. Hence, merely on the ground that the witness was brought by the plaintiff of his own without assistance of the Court, it cannot be said that his statement cannot be considered. Hence, in view of these facts, the present revision petition is accepted and the impugned order passed by learned trial Court ordering for not taking into consideration the statement of PW3-Naresh Kumar is set aside. The present petition is disposed of accordingly. 13.1.2011 (Ram Chand Gupta) meenu Judge