IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 130 of 2008 Date of Decision: February 25, 2008 Joginder Singh and others ............Petitioners VERSUS Jeet Singh and others .............Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.R.L.Sharma, Advocate, for the petitioners. Mr.H.S.Mattewal, Sr.Advocate with Mr.H.S.Sidhu, Advocate for respondent Nos. 1 and 2 Mr.Naresh Kaushik, Advocate. for respondent No.3. ** RANJIT SINGH J. The petitioners and respondents are fighting hard for a control of 'Gurudwara', a religious institution. Real purpose clearly is to control the income and the property attached to the Gurudwara, rather than to do any religious service. Civil Revision No. 130 of 2008 { 2 } Gurudwara Nirmal Kutia Johal (hereinafter referred to as an 'institution') is stated to have established in the year 1920 by Baba Basant Singh for carrying out religious /spiritual and social services to the public at large in the State of Punjab. It is further averred that Baba Basant Singh was succeeded by Baba Gian Singh, followed Baba Harbhajan Singh . On the death of Baba Harbhajan Singh, respondent No.1 Jeet Singh is alleged to have assumed charge of the institution as Mukhiya (head). Allegation further is that he got sanctioned mutation of the agriculture land attached to the institution in his personal name and has also sold properties valued at Rs.27.00 lacs which he did not appropriate for the institution. Claiming themselves to the old devotees of the institution, the petitioners have filed a suit on 7.2.2005 in the Court of Civil Judge (Junior Division) Jalandhar, challenging the sanction of mutation of the land/property in the personal name of respondent No.1. Challenge also is made to the act of respondent No.1 in taking over as Mukhiya (head) of the institution. Application under Order 39 Rules 1 and 2 was also filed seeking injunction restraining respondent No.1 from alienating/transferring or mortgaging the property of the institution pending decision of the suit. The said application was declined by the trial Court, but in an appeal filed, the appellate Court restrained the respondent from alienating/transferring the agriculture land/property of the institution during the pendency of the civil suit. The revision filed by the respondent was dismissed by this Court on 31.5.2005 Civil Revision No. 130 of 2008 { 3 } and, thus, the order of injunction so granted by the Court had has become final. The petitioners also filed another application before the trial Court for appointing a receiver under Order XL Rule 1 CPC so as to control and account for the monthly income of the institution received through gifts, which ran into lacks, as per the petitioners. The trial Court, through its order dated 17.10.2006, appointed Tehsildar (i) Jalandhar as Receiver with the directions to him to open the 'Gulak' in the presence of certain prominent persons and account for daily income in the books of accounts. The Court further directed that the amount, so collected, be deposited with some Nationalized bank and the report in this regard be submitted to the Court. District Judge, Jalandhar through its order dated 14.12.2006 set aside this order, which was then impugned in the revision petition No. 1309 of 2007 before this Court. This revision was disposed of by this Court directing the trial Court to decide the suit expeditiously preferably by 31.12.2007 with certain directions to the parties to produce the witnesses etc. The operative part of the order passed by this Court is as under:- “Moreover, the petitioners have not led any evidence in the civil suit filed by them. It was submitted by the learned counsel for the petitioners that the civil suit is fixed in the learned trial Court for 28.9.2007 and they would produce the only witness in the learned trial Court Civil Revision No. 130 of 2008 { 4 } on that date. The learned counsel for the petitioners undertakes to give a copy fo the affidavit of that witness (examination-in-chief) to the learned counsel for the respondents within one week from today and they would produce the witness in the learned trial Court on 28.9.2007. The learned counsel for the respondents undertakes to cross-examine the said witnesses on that date. The petitioners also want to produce certain mutation entries and the copies of the registered sale deeds. They would produce the same in the learned trial Court on the same day and the learned counsel for the respondents submitted that they would not raise any formal objection regarding the proof of those documents. The learned counsel for the petitioners undertake to close their evidence on 28.9.2007 itself and at the most one more opportunity shall be granted to them to conclude their evidence. The learned counsel for the respondents submitted that they would also close their evidence by availing at the most two opportunities. The learned trial Court shall decide the suit expeditiously preferably by 31.12.2007.” Pursuant to the directions by this Court affidavit as examination-in-chief of one Gurmukh Singh attorney of Joginder Singh, petitioner No.1, was filed. He was subjected to cross- Civil Revision No. 130 of 2008 { 5 } examination for about 9/10 days and, thus, his cross-examination could be concluded only on 27.10.2007. The petitioners then filed an application seeking permission to examine Tarlochan Singh (petitioner No.2) along with an application for placing on record his affidavit by way of examination-in-chief. This request was declined by the trial Court which was impugned by the petitioners by filing a Civil Revision petition No. 5879 of 2007. This revision was allowed by this Court on 7.12.2007 and directions were issued to conclude the trial by 15.1.2008. Tarlochan Singh, petitioner No.2, was cross- examined on 10.12.2007, 11.12.2007,15.12.2007, 19.12.2007, 3.1.2008 and 4.1.2008. It is alleged that on 19.12.2007 Tarlochan Singh, petitioner No.2, was manhandled at the behest of respondent No.1 outside the Court room and was even thrown on the ground. Allegation further is that he was illegally detained for about 15 minutes and was forced to sign some documents, besides obtaining signatures on the blank papers. Said Tarloichan Singh submitted an application to SHO Police Station Sadar Jalandhar and DDR (Annexure P-1) was registered in this regard on 19.12.2007. On 22.12.2007, Tarlochan Singh filed an application seeking exemption from appearance on the basis of a medical advice. He also prayed for providing police help for appearing before the Court. It is under these circumstances, the evidence of Tarlochan Singh was concluded by 3 /4.1.2008. During the pendency, respondent No.1 has moved an Civil Revision No. 130 of 2008 { 6 } application under Order 26 Rule 1 CPC on 13.11.2007 seeking appointment of a Local Commissioner for recording his evidence at Gurudwara Nirmal Kutia Johal on the ground that he was not feeling well as he was suffering from back ache and was advised bed rest for one month by the doctors. This application was opposed by the petitioners alleging that respondent No.1 was hail and hearty and was not suffering from any disease as alleged. It was further pleaded that the medical certificate produced by respondent No.1 from a registered medical practitioner was false. The petitioners expressed their apprehension that they would suffer a great prejudice if this concession was shown to respondent No.1 and as such, prayed that he be called and examined before the Court which would also be essential to observe demeanor of the witness. The trial Court allowed this application without properly appreciating and looking into the objections and apprehension expressed by the petitioners and appointed Sh Harsh Tiwari, Advocate (respondent No.3) as a Local Commissioner for recording the statement of respondent No.1 on 28.11.2007 at Gurudwara Nirmal Kutia Johal. The reasoning given by the trial Court to made this order is based on the consideration that this Court had issued direction in Civil Revision No. 1309 of 2007 for deciding the suit expeditiously and preferably by 31.12.2007. The prayer of the petitioners for review of this order allowing cross-examination through commission was also declined. While seeking review it was Civil Revision No. 130 of 2008 { 7 } pleaded that the parties are dagger drawn with each other and it would not be possible for the petitioners to conduct effective cross- examination of respondent No.1 at Gurudwara, which was prayed to be appreciated in the background of the fact that the devotees have been even crowding the Court room at the time of hearing to create hindrance. Even prayer was made before respondent No.3 (commission) not to proceed to the Gurudwara Nirmal Kutia Johal as it was not possible for the petitioners-plaintiff to accompany their advocates for effective cross-examination of respondent No.1. Respondent No.3, however, acting on the directions given by the trial Court, proceeded to perform his duties as a Commissioner and submitted his report on 30.11.2007 to the effect that he had waited for the counsel of the petitioners from 3.00 PM to 5.00 PM, but no body turned up to cross-examine respondent No.1. The cross- examination, as such, was recorded as “Nil”. The copy of the report submitted before the Court is at Annexure P-9. On 3.12.2007 the petitioners moved another application before the trial Court for issuing direction to respondent No.1 to appear in person to face the cross-examination. Another application was moved for constituting a panel of doctors from civil hospital to conduct the medical examination of respondent No.1 to see if he was suffering from any ailment as alleged. Both the applications are rejected by the Court on 5.12.2007. The trial Court has, thus, declined to give any further opportunity to the petitioners to cross-examine respondent No.1. It is Civil Revision No. 130 of 2008 { 8 } further observed that the petitioners had deliberately not gone to Gurudwara Nirmal Kutia Johal for cross-examination and, thus, it (cross-examination) is recorded as “ Nil”. The order for appointing Local Commissioner for examining respondent No.1 at Gurudwara and the subsequent order declining opportunity of cross-examination are impugned through the present revision petition. Fair trial is a hallmark of our judicial system. Every party is entitled to prosecute a lis and a fair opportunity to prove its case in an atmosphere which is conducive to a fair trial. If a party has an apprehension of not getting a fair opportunity to prosecute its lis, the Court is required to appreciate the same and take appropriate action ensuring that no one suffers from any such apprehension. The apprehension which may come to the mind of a party is required to be appreciated by the Court by placing itself in the position of the person who is under any such apprehension. It is held in the case of Ranjit Thakur vs. Union of India, 1987 AIR 2386 that to test the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party and that proper approach for the judge is not to look at his own mind and ask himself but to look at the mind of the party before him. The petitioners had protested to the application filed by respondent No.1 for his examination at Gurudwara Nirmal Kutia Johal and apparently had some genuine reasons in support thereof. It is alleged in the petition that one of the witnesses was manhandled Civil Revision No. 130 of 2008 { 9 } in the precincts of the Court and, as such, the petitioners could have genuine apprehension that they would not be able to conduct the cross-examination of respondent No.1 in a fair and proper manner at the Gurudwara under his control. The petitioners have been crying hoarse in saying that sickness is a pretense and, in fact, respondent no.1 is hail and hearty but is not appearing before the Court just to satisfy his ego. As per the petitioners, respondent No.1 considers himself too big to appear before Court. It is rightly pointed out on behalf of the petitioners that even the medical certificate got from registered medical practitioner contained recommendation for rest for one month and it contained no stipulation that this rest was to be of nature, for which respondent No.1 would not be able to appear before Court and is to be cross-examined at a place of his abode Back ache is a disease which was urged to seek this permission. The trial Court was expected to appreciate that it is not such a disease which would disable a person to appear in the Court. Court is a temple of justice and is described so not without any reason. Asking the parties to appear at some body's place or a house in the background that there is dispute in regard to the control of the alleged religious institution obviously was something which was bound to affect the fair trial of the case . In any event the petitioner could have genuine apprehension of danger to their person in the Gurudwara and if the stipulation of time as laid down by this Court was the reason then the Court could have sought extension rather Civil Revision No. 130 of 2008 { 10 } than making it look as if Court is acting subservient to the demand of a party. During the course of arguments, it is conceded before me by Mr.H.S.Mattewal, representing respondent No.1, that the witness is now not suffering from the disease which had kept him away from appearing before the Court to face cross-examination. The manner in which Mr. Mattewal stressed himself to oppose the prayer made in the present petition, apparently would give indication of a fact that respondent No.1 was basically having some problem other than health. What objection, otherwise the witness can have to appear before the Court which is the place where trial should be conducted. Apparently real contest is to control the properties and the income generated from the institution. The money that is generated perhaps is available for use/misuse. The trial Court had been fair in appointing a receiver to account for the income. There may not have been a need to expedite the trial if that order had continued. Merely because trial is to be conducted in time bound, period a party can not be shown any extra indulgence to create an impression that some one is favoured or feared. Nobody is above law and cannot consider him to be so. The well known maxim: “Be you ever so high, the law is above you”, is not to be ignored by the Courts. There is no requirement for going into the fact of genuineness about the sickness, but the manner, in which the permission is granted for cross-examination of this witness at the place of witness would Civil Revision No. 130 of 2008 { 11 } certainly sound not a fair approach. One can imagine a situation where counsel and commissioner are present at a place of choice of witness, while he cools himself on his seat in a dera/institution known as Nirmal kutiya. Mr.Mattewal, laid much emphasis to say that the order would not call for interference in exercise of revisional jurisdiction by this Court under Article 227 of the Constitution of India. Obviously he seems to be talking about parameters of exercise of revisional jurisdiction, which generally are perversity or non application of mind to the material on record. During his arguments, the counsel did not make any such specific plea as to how the petition would not fall within the parameters of revisional jurisdiction. The aspect of fair chance to a party to prosecute a lis certainly would be one of the consideration for a Court to exercise jurisdiction under Article 227 of the Constitution of India. It may be that the trial Court was in hurry to decide the case because of directions given by this Court but the Court could not have acted in a manner to make it look that it is under any influence which may make the fair trial to be the causality. Instances are not unknown where the trial Courts have sought extension of time in the cases which are made date bound for conclusion. The photocopy of the certificate, relied upon by respondent No.1 to seek exemption from appearance before the trial Court and for his cross-examination at his place was shown to me Civil Revision No. 130 of 2008 { 12 } during the course of arguments. At the end of the certificate there is a printed note reading “ not for medico legal purpose”. It can not otherwise be assumed that for two months respondent No. 1 was not able to get out of bed. Whether such a medical certificate, saying that a person is suffering from back pain, could be considered enough to excuse appearance by respondent No.1 before the Court, was not considered at all by the trial Court. While allowing this prayer of respondent No.1 the trial Court apparently has not considered or appreciated the stand of the petitioners that this disease was a fake one and was only aimed at avoidance by respondent No.1 to appear before the Court. The subsequent action of the Court directing SHO Police Station Sadar Jalandhar to make arrangement for the safety of the plaintiff at the time of recording of statement of respondent No.1 would rather be an indication of genuineness of the apprehension expressed by the petitioners in the arrangement, as directed. The further action of the Court in declining the prayer of the petitioners in recording the cross-examination to be 'Nil' instead of granting fair opportunity to the petitioners to conduct the cross-examination of respondent No.1 before the Court is also not justified. It can, thus, be stated that the petitioners have not been treated fairly and would suffer the consequences in prosecuting their lis. The impugned order suffers from material irregularity inasmuch as that the fair trial of this suit would be a causality. The apprehension expressed by the petitioners is found to be well made out. They would not have been in Civil Revision No. 130 of 2008 { 13 } any proper position or frame of mind to instruct their counsel for proper cross-examination of respondent No.1. It may need a notice that petitioners were subjected to lengthy cross-examination spanning for days. There may also be a need for cross-examination which may extend for more than a day. How could the Court notice the demeanour of witness. Accordingly the impugned orders whereby the cross-examination of the witnesses have been recorded as 'Nil' can not be sustained. At the time of issuance notice of motion, the counsel for the petitioners had restricted his prayer for grant of one opportunity to cross-examine respondent No.1 before the Court. The Court is a place where parties to prosecute a lis should appear and the Courts can not go to the place of parties, be it a religious institution. Back ache would not sound such a serious problem which could keep a person back from appearing before the Court. The impugned order recording the cross-examination of the witness as 'Nil', therefore, is set aside. The case will go back to the trial Court. Counsel through their parties to appear before the trial Court on 27.3.2008. The trial Court would then fix a date for appearance of respondent No.1 to face the cross-examination by the petitioners. The trial Court would thereafter, continue with the trial in accordance with law. Needless to mention that the trial Court would hold the proceedings uninfluenced by any personality, that may be a party before it and would remind itself of a maxim as referred above that “Be you ever so high, the law Civil Revision No. 130 of 2008 { 14 } is above you.” The direction to conclude the trial would deem to be extended. The Court would endevour to conclude the trial as early as possible. With the above observations, the present revision petition is allowed. (RANJIT SINGH) JUDGE February 25, 2008 anita