Single judge Revision barred recall of cross-examination. Held trial court correct in refusing reading of evidence if witness not fully cross-examined or statement not signed.
None. The recall application was dismissed.
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C . R. No. 5592 of 2010
1
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
C . R. No. 5592 of 2010 Date of Decision : 01.09.2010
Smt. Sneh Lata Sood & another
.......... Petitioners
Versus
Luxmi Narain Pareek & others
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. B.R. Mahajan, Advocate for the petitioners.
VINOD K. SHARMA, J. (ORAL)
This revision under Article 227 of the Constitution of India is directed against the order dated 11.8.2010, passed by the learned Addl. Civil Judge (Sr. Div.), Faridabad, vide which an application moved by defendant No.3, PW Parveen Gupta-plaintiff has been ordered to be recalled for cross-examination by defendants No. 3 & 4.
Mr. Parveen Gupta was examined in the Court as PW-1 and his affidavit was taken in examination-in-chief as Ex. PW-1/A on 3.9.2008. He was partly cross-examined by the counsel for defendant No.1, Sh. Deepak Gera, Advocate.
The cross-examination of the witness was neither signed by the Presiding Officer nor the witness, which prima facie show that it was incomplete. The Court vide order dated 20.11.2009 disallowed the evidence of PW1, to be read in evidence in view of the previous
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order for closing the evidence of the plaintiff, except for crossexamination of PW-2.
The plaintiff / respondent being aggrieved by the order approached this Court by way of revision petition, which was allowed subject to payment of costs.
The operative part of the order passed by this Court reads
as under :-
“I intend to dispose of the revision petition without issuing notice to respondents so as to avoid further delay in the disposal of the suit and also to save the respondents of the expenses which they may have to incur in engaging counsel in the revision petition if notice of the revision petition is issued to them.
For the reasons aforesaid, the instant revision petition is allowed and the trial Court is directed to grant only one more opportunity to the petitioners to adduce their remaining evidence at own responsibility, subject to payment of Rs. 20,000/- as costs precedent.
The petitioners may take assistance of the Court for summoning their evidence, but it shall be no ground to grant any more opportunity, even on the ground of nonservice of any witness or non-appearance of any witness inspite of service or for any other reason whatsoever.”
The learned trial Court, keeping in view the fact, that evidence of PW1 was not complete and he was partly crossexamined and furthermore that no opportunity was given to the
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defendants No. 3 & 4 to cross-examine the witness of the plaintiff, specially keeping in view the fact that the plaintiff had conceded that the application be allowed and Mr. Parveen Gupta be recalled for cross-examination by defendants No. 3 & 4.
The learned counsel appearing on behalf of the petitioner challenged the impugned order by contending, that the application is an attempt to delay the proceedings, and an attempt to circumvent the order passed by this Court.
The contention of the learned counsel for the petitioner further was, that the reading of the order passed by this Court shows, that the plaintiff was merely granted, one last opportunity for leading the remaining evidence by setting aside the order passed by the learned trial Court. The evidence of PW-1 was permitted to be read in evidence.
The contention of the learned counsel for the petitioner was, that after passing of the order by this Court on 6.5.2010, all parties closed their evidence. On 6.5.2010 the counsel made statement that they had no objection, if the affidavit given by PW-1 Parveen Gupta and his Cross-examination be read in evidence, in the light of the order passed by the learned trial Court.
On consideration, I find no force in the contention raised by the learned counsel for the petitioner. The order passed by this Court is to be given an interpretation which would lead to advancement of justice, and not to thwart it.
This Court directed that the evidence of PW1 be read in evidence. This can not be done as the evidence is not complete as
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PW-1, has not been cross-examined by all the defendant / respondents. The statement has also not been signed by the Court or the witness.
In order to allow this evidence to be read, it was incumbent on the Court, to permit the recall of PW-1, for crossexamination. Merely because counsel for the parties made a statement, against the order passed by this Court, is not a ground to deny the party to cross-examine the witness. The order can not be said, to be a review of the previous order, as in absence of the crossexamination and signatures of the witness and the Presiding Officer, it can not read in evidence. The interference with the order would defeat the very purpose of passing of the order by this Court.
No merit.
Dismissed.
01.09.2010 (VINOD K. SHARMA) 'sp' JUDGE
2 issues framed by the court
Whether the trial court was justified in recalling a witness already examined for further cross-examination contrary to a High Court order permitting the reading of evidence.
Whether an incomplete court order where the witness statement is unsigned can be read in evidence without recalling the witness.
Smt. Sneh Lata Sood
Luxmi Narain Pareek
Vinod K. Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
