High Court allowed civil revision under Article 227 setting aside trial Court orders treating cross-examination as nil. Directed trial Court to grant one more opportunity for cross-examination subject to payment of Rs.5,000 cost.
Impugned orders set aside; petitioner granted one opportunity for cross-examination conditional upon depositing Rs.5,000 costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Civil Revision No.143 of 2011 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Civil Revision No.143 of 2011 (O&M) Date of Decision: January 20, 2011
Krishan Gir
.....Petitioner
v.
Gurmelo and others
.....Respondents
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Hardeep Singh, Advocate for the petitioner.
.....
RAM CHAND GUPTA, J.(Oral)
C.M.No.558-CII of 2011
Application is allowed subject to all just exceptions.
C.M.No.1555-CII of 2011
Requests for placing on record Annexures P9 to P17, i.e., copies of zimni orders passed by learned trial Court.
The same are taken on record subject to all just exceptions. Application stands disposed of accordingly.
Civil Revision No.143 of 2011
The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 20.2.2010, Annexure P3, passed by learned trial Court, vide which cross-examination of witnesses on behalf of petitioner-defendant no.1 on respondent no.1plaintiff was treated as nil, order dated 26.4.2010, Annexure P6, vide which again cross-examination of the witnesses was treated as nil and order dated 19.11.2010, Annexure P8, dismissing the application, Annexure P7, filed by petitioner for grant of one more opportunity to cross-examine the witnesses.
I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned orders passed by learned trial Court.
Civil Revision No.143 of 2011 (O&M)
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Brief facts relevant for the decision of present revision petition are that respondent-plaintiff filed a suit against petitioner-defendant no.1 and proforma respondent nos.2 to 4-defendants for joint possession of the land to the extent of 1/5th share in the land in dispute left by Kehar Gir son of Dola Gir, father of the plaintiff, petitioner and respondent nos.2 and 4 and husband of respondent no.3, on the plea that mutation No.584, sanctioned on the basis of alleged Will executed by Kehar Gir, father of respondent No.1-plaintiff, in favour of petitioner-defendant no.1 and proforma respondent no.2-defendant no.2 is illegal, null and void and is not binding upon the plaintiff.
Suit was contested by present petitioner and proforma respondents controverting the claim of respondent no.1-plaintiff by taking the plea that Kehar Singh executed a valid registered Will dated 22.1.1998 in favour of present petitioner and proforma respondent no.2-defendant no.2. Issues were framed and the case was fixed for evidence of respondent No.1-plaintiff by learned trial Court. Two witnesses were examined by the plaintiff and the case was adjourned for cross-examination on behalf of the petitioner-defendant and proforma respondent-defendants. However, the case was adjourned to 11.1.2010 for their cross-examination and thereafter adjourned to 20.2.2010 when the cross-examination was declared nil on the plea that nobody had come to cross-examine the witnesses. However, perusal of order, Annexure P3, shows that attendance of counsel for the parties was recorded by learned trial Court and despite that it has been mentioned in the order that nobody has come to cross-examine the witnesses. An application for recalling the said order was filed on behalf of the present petitioner, which is Annexure P5, on the adjourned date, i.e. 16.3.2010, which was fixed for 26.4.2010. On 26.4.2010, impugned order, Annexure P6, was passed mentioning that witnesses were present on that date as well and the opportunity was being granted to petitioner to crossexamine the witnesses and as no-one was present to cross-examine the witnesses, further opportunity to cross-examine these witnesses was declined. However, in this order as well, attendance of counsel for the parties was recorded without specifying as to who were the counsel present.
Another application, Annexure P7, was filed on behalf of the
Civil Revision No.143 of 2011 (O&M)
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petitioner for granting an opportunity to cross-examine the witnesses on the plea that counsel for the petitioner was busy in some other Court when the case was taken up. However, the said application was also dismissed by passing the following order:-
“ Heard on the application for review of the order. Perusal of the file reveals that the witnesses were present but were not examined by the plaintiff and their cross-examination was treated nil vide order dated 20.2.2010 and the application was moved thereafter for recalling that order but on 26.4.2010, my learned predecessor gave another opportunity for crossexamination of the other witnesses on the statement of the plaintiff but inspite of that the opportunity was not availed by the party and the cross-examination was treated nil. Now at this stage the another application has been moved for recalling the order despite the fact that the defendants were given the opportunity to cross-examine the witnesses but they never availed the opportunity and again filed the application on the same ground. This Court does not find any merit in the application. Hence, the application is dismissed.
Now for tendering documents by the plaintiff to come up on 12.1.2011.”
The case is still at the stage of evidence of respondent-plaintiff. Hence, merely on the ground that counsel for the petitioner was busy in other Court, parties cannot be made to suffer. So far as the fact that this act of petitioner-defendant has resulted in delay in the decision of present suit is concerned, opposite party can be compensated by way of cost.
It has been stated by learned counsel for the petitioner that he be given one opportunity, on which date the witnesses will be crossexamined on behalf of the petitioner-defendant.
Hence, in view of these facts, the present petition is accepted. The impugned orders are set aside. Learned trial Court is directed to grant one opportunity to petitioner-defendant to cross-examine the witnesses, already examined by respondent-plaintiff. However, petitioner is burdened with cost of Rs.5,000/-.
Civil Revision No.143 of 2011 (O&M)
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However, it is made clear the payment of cost shall be a condition precedent.
20.1.2011 (Ram Chand Gupta) meenu Judge
2 issues framed by the court
Whether the trial Court erred in treating cross-examination as nil despite recorded attendance of counsel.
Whether the petitioner is entitled to another opportunity to cross-examine witnesses.
1 provisions across 1 enactments
Krishan Gir
Gurmelo
RAM CHAND GUPTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
