After hearing learned counsel for the parties, I find merit in the submissions made by learned counsel for the petitioner. It is a case where initially ex-parte decree was passed against respondents No. 1 to 3 in a suit for possession by way of specific performance of agreement to sell. The petitioner had already paid the entire sale consideration money. Rs. 3,00,000/- were paid as earnest money to respondents No. 1 to 3, whereas Rs. 1,00,000/- were deposited in the Court after the passing of ex-parte decree, which were also withdrawn by respondents No. 1 and 3. The ex parte decree was set aside on an application by respondent No. 2, who had not withdrawn the part sale consideration. As the proceedings in the suit started afresh, after setting of the ex-parte decree, in that process the witness, namely, Bakshish Singh Aujla, Advocate, who was scribe of the agreement to sell and appeared as P.W-1, could not be produced for his crossexamination by respondent No. 2, which was pointed out to the petitioner after he had changed the counsel. In my opinion, for that inadvertent lapse on the part of the petitioner, he should not be made to suffer as procedural law is subservient to justice. Accordingly, while setting aside the impugned order dated 10.10.2008, the petitioner is granted opportunity to produce PW1-Bakshish Singh Aujla, Advocate, whose examination-in-chief has already been recorded, for cross-examination by respondent No. 2 on the date already fixed before the trial court, i.e., 13.5.2009.
