CR No. 5380 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 22277-CII of 2009 and CR No. 5380 of 2009 Date of Decision: 17.9.2009 Jaswant Singh ....Petitioner. Versus Karnail Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Narender Lucky, Advocate for the petitioner. AJAY KUMAR MITTAL, J. C.M. No. 22277-CII of 2009 Allowed as prayed for. C.R. No. 5380 of 2009 The plaintiff-petitioner has approached this Court by way of instant revision petition under Article 227 of the Constitution of India, challenging the order dated 20.7.2009 (Annexure P-2) whereby the application filed by him for restoration of the suit was dismissed by the trial court. The trial court while deciding the aforesaid application had noted that the plaintiff-petitioner when appeared as AW1 in his cross- examination admitted that he was present in the court on 21.3.2005 when the suit was dismissed in default. The trial court further recorded that Shri Varinder Singh Sandhu, Advocate, for the plaintiff who appeared as RW3 had stated in his examination-in-chief that the date fixed in the main case was 21.3.2005 but on that date, the plaintiff did CR No. 5380 of 2009 -2- not bring any evidence and the suit was dismissed in default. The observations of the trial court in paras 8 and 9 which are relevant for the decision of the present revision petition read thus:- “8. To prove this main issue onus was upon applicant. In this regard he himself has stepped into the witness box as AW1 and in his examination-in-chief he has reiterated his version contained in the application. However, in his cross-examination he dashed his entire version and clearly admitted that he had the knowledge regarding the date fixed in main suit which was 21.3.05 and that applicant-plaintiff was present in Court on that day. He also stated that he has come to know about dismissal of his main suit after about 4-5 days of suit dismissal though he blew hot and cold in same breathe when he firstly admitted that on 21.3.05 it was last opportunity for his evidence and then he hastened to and that his counsel had not told him to bring any evidence nor had told him if the next date fixed was 21.3.05. Remaining suggestions were denied by him. 9. To rebut this evidence respondent-defendant himself appeared as RW2 and also examined RW1 Makhan Singh, Clerk of counsel for applicant-plaintiff in main suit. He also CR No. 5380 of 2009 -3- examined RW3 Advocate Varinder Singh Sandhu engaged by the applicant-plaintiff in above said main suit. RW1 and RW3 stated in the examination-in-chief that the date fixed for evidence in the main case of applicant-plaintiff against respondent-defendant was 21.3.05 but on that day applicant-plaintiff did not bring any evidence and, therefore, the suit was dismissed in default. Suggestions of applicant/plaintiff were denied by RW1 Clerk Makhan Singh and RW3 Advocate Varinder Singh Sandhu. RW3 also proved his statement Ex.R2 in the main suit (summoned file) vide which he has given an undertaking before court, on behalf of applicant-plaintiff, on 15.2.2005 that he will conclude evidence of applicant-plaintiff on next date i.e. 21.03.05 (on this date applicant-plaintiff did not appear with evidence and his suit stood dismissed in default). Cross-examination of RW2 respondent Karnail Singh is formal and suggestive in nature.” In view of the above, no ground to exercise its jurisdiction by this Court under Article 227 of the Constitution of India is made out. Dismissed. September 17, 2009 (AJAY KUMAR MITTAL) gbs JUDGE