Civil Revision No.5108 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5108 of 2011 Date of Decision:25.08.2011 Bahadar Singh ......Petitioner Versus Harmesh Kumar .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Anil Kumar Garg, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, relevant for disposal of the instant revision petition and emanating from the record, are that Bahadar Singh son of Hari Singh- petitioner-plaintiff(for brevity “the plaintiff”) filed the suit against Harmesh Kumar son of Chhajju Ram-respondent-defendant(for short “the defendant”) for recovery of `1,71,600/-(`1,30,000/- principal amount + `41,600/- as interest). 2. Having completed all the codal formalities, ultimately, the case was slated for evidence of the defendant on 02.08.2011. On that day, DW1-Harmesh Kumar has tendered into evidence his affidavit(Ex.DW1/A). Since, the counsel for the plaintiff did not cross-examine him, so, the trial Court recorded his cross- examination 'Nil', opportunity given, by means of impugned order dated 02.08.2011. 3. The petitioner-plaintiff did not feel satisfied with the decision of the trial Court and preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India. 4. 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- Civil Revision No.5108 of 2011 2 defendant, in order to save him from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit, particularly when he can be compensated with adequate costs in this respect. 5. After hearing the learned counsel for the petitioner-plaintiff, going through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, the instant petition deserves to be partly accepted in this context. 6. As is evident from the record that, DW1-Harmesh Kumar has tendered into evidence his affidavit(Ex.DW1/A) on 02.08.2011. Since, counsel for the plaintiff did not cross-examine DW1 on that day, so, the trial Court recorded his cross-examination 'Nil', opportunity given. As is clear from the interim order dated 02.08.2011, the trial Court did not record any reasons in this regard that, what prompted it to close the cross-examination of DW1. 7. Keeping in view the nature of litigation, even if, counsel for the plaintiff was unable to cross-examine DW1 on 02.08.2011, the trial Court ought to have granted one opportunity to the plaintiff, to arrange for the cross-examination of DW1, instead of straightway jumping to adjourn the case for rebuttal evidence. It is now well-settled that a party cannot be allowed to suffer, on account of inaction or negligence of his counsel. To me, since DW1 was the material witness, so, his cross-examination was essential, to decide the real controversy between the parties. In this manner, the trial Court committed a material, procedural irregularity and illegality and the impugned order cannot be maintained in the obtaining circumstances of the case. Moreover, no prejudice is going to be caused to the respondent-defendant, particularly when he can be compensated with adequate costs in this relevant behalf. More so, when the case is still fixed for rebuttal evidence. 8. 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 Civil Revision No.5108 of 2011 3 trial of the suit, the instant revision petition is partly accepted. Consequently, the impugned order is hereby set aside. The trial Court is directed to provide one more opportunity to the petitioner-plaintiff, to cross-examine DW1. However, this would be subject to the payment of Rs.5,000/-(Rupees Five Thousand) as costs to be paid by the petitioner-plaintiff to the respondent-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 case. The Registry is directed to send a copy of this order to the trial Court forthwith, for strict compliance. August 25, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Civil Revision No.5108 of 2011 4 C.M.No.20653-CII of 2011 in Civil Revision No.5108 of 2011 Present: Mr.Anil Kumar Garg, Advocate, for the petitioner. **** Application is allowed as prayed for. August 25, 2011 (MEHINDER SINGH SULLAR) seema JUDGE