Civil Revision No.4283 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.4283 of 2010(O&M) Date of Decision: May 3, 2011 Chamkaur Singh .....Petitioner v. Amarjit Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Parvez Chugh, Advocate for the petitioner. None for the respondent. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for issuance of direction to learned trial Court to afford an opportunity to the petitioner for recalling a witness, namely, Ashok Kumar, Registration Clerk, from the office of Sub Registrar, Guruharsahai for further cross examination and for setting aside impugned order dated 27.5.2010, passed by learned trial Court, vide which request of petitioner-defendant in this regard was declined. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for specific performance of agreement to sell was filed by respondent-plaintiff against petitioner-defendant on the plea that he was always ready and still ready to perform his part of the contract and, however, petitioner-defendant committed breach of terms and conditions of the contract. Suit was contested by petitioner-defendant by taking the plea that it was respondent-plaintiff, who committed breach of terms and conditions of the contract. Issues were framed. Evidence was adduced by respondent-plaintiff. Respondent-plaintiff also examined a witness, namely, Ashok Kumar, Registration Clerk of the office of Sub Registrar Civil Revision No.4283 of 2010(O&M) -2- Guruharsahai in order to prove an application dated 7.6.2006, Ex.P1, allegedly moved by him before the Sub Registrar for getting the sale deed executed and registered in his favour by petitioner-defendant. Present application has been filed by petitioner-defendant for recalling the said witness on the plea that inadvertently his counsel could not properly cross- examine the said witness and that though an application was also moved by petitioner-defendant before the Sub Registrar on the same day, i.e., 7.6.2006, which bears signatures of Joint Sub Registrar, Guruharsahai and, however, the said original application could not be put to the said witness in cross-examination for proving signatures of Joint Sub Registrar, Guruharsahai, on the same. The application was contested by respondent- plaintiff and the same was declined by learned trial Court vide impugned order. It is pertinent to reproduce Order XVIII Rule 17 of the Code, which reads as under: “17.Court may recall and examine witness.- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.” A plain reading of the aforesaid provision shows that a witness can be recalled at the discretion of the Court and the questions can be put to him as the court thinks fit. In the present case original application bearing signatures of Joint Sub Registrar has been placed on record by petitioner-defendant. The said application could not be put to the said witness due to negligence of counsel for the petitioner-defendant. The application is necessary for proper adjudication of controversy between the parties, as similar application was also moved by respondent-plaintiff before the Sub Registrar on that day. Party cannot be made to suffer due to negligence on the part of his counsel. Moreover, the case is still at the stage of evidence of petitioner- defendant. Petitioner-defendant could summon another official of the office of Sub Registrar to prove signatures of the Sub Registrar on the application. So far as the fact that counsel for the petitioner-defendant was negligent in not properly cross-examining the witness is concerned, the other party can Civil Revision No.4283 of 2010(O&M) -3- be compensated by way of cost. In view of the aforementioned facts, I am of the view that illegality and material irregularity has been committed by learned trial Court in passing the impugned order in declining the request of petitioner- defendant to recall PW Ashok Kumar, Clerk of the office of Sub Registrar, Guruharsahai, for further cross-examination and a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to permit the petitioner- defendant to summon the said witness for the purpose of further cross- examination, subject to payment of `5,000/- as cost, which shall be a condition precedent. 3.5.2011 (Ram Chand Gupta) meenu Judge