Partly allowed

B.M. Fredrick v. Phalwas Masih and Ors.

Punjab & Haryana HC16 Jan 2012CR/302/2012

Case brief

AI extract

What is this about?

Revision petition challenging the dismissal of an application to recall witnesses DW-1 Gulrez Masih and DW-2 Issac Nasrani. The court partly allowed the petition, permitting cross-examination of the uncross-examined witness but denying recall for the already cross-examined adversary's witness.

What did the court decide?

Trial court directed to grant opportunity for cross-examination of DW-2 Issac Nasrani on payment of Rs.5,000/- as cost precedent. Recall of DW-1 Gulrez Masih denied.

B.M. Fredrick Vs Phalwas Masih and… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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C. R. No. 302 of 2012

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Case No. : C. R. No. 302 of 2012

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Date of Decision : January 16, 2012

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B. M. Fredrick

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.... Petitioner Vs.

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Phalwas Masih and another .... Respondents

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CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

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Present : Mr. Sanjay Jain, Advocate for the petitioner.

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L. N. MITTAL, J. (Oral) :

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In this revision petition filed under Article 227 of the Constitution of India, petitioner has assailed order dated 08.12.2011 (Annexure P-1) passed by learned Civil Judge (Junior Division), Moga, thereby dismissing petitioner's application for recalling DW-1 Gulrez Masih (defendant-respondent no.2) and his witness DW-2 Issac Nasrani for proper cross-examination.

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The petitioner alleged in the application that the previous counsel representing defendant no.1 did not cross-examine DW-2 Issac Nasrani at all in spite of opportunity and did not properly cross-examine

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C. R. No. 302 of 2012

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DW-1 Gulrez Masih (defendant no.2).

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I have heard learned counsel for the petitioner and perused the

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case file.

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Counsel for the petitioner contended that no cross-examination at all has been conducted on DW-2 Issac Nasrani and therefore, it is necessary to recall the said witness for cross-examination on behalf of defendant no.1. It was also contended that some material questions could not be put to DW-1 Gulrez Masih (defendant no.2), and therefore, it is necessary to recall him for further cross-examination.

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I have carefully considered the aforesaid contentions.

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In so far as recalling of DW-1 Gulrez Masih for further crossexamination is concerned, the prayer cannot be allowed. It has not been stated in the application as to what material questions were not put to this witness in his cross-examination. The petitioner cannot be permitted to recall the witness of the adversary for filling up any lacuna. However, in so far as recall of DW-2 Issac Nasrani for cross-examination on behalf of defendant no.1 is concerned, there is merit in the submission of counsel for the petitioner. The said witness was not cross-examined at all on behalf of defendant no.1. Consequently, ends of justice would be served if recall of the said witness for cross-examination on behalf of defendant no.1 is allowed, on payment of cost.

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I intend to dispose of this revision petition without issuing

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C. R. No. 302 of 2012

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notice to contesting defendant-respondent no.2 so as to avoid further delay in disposal of the suit and also to save respondent no.2 of the expenses he may have to incur in engaging counsel for the purpose of this revision petition, if notice thereof is issued to him.

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For the reasons aforesaid, the instant revision petition is partly allowed. Trial court is directed to grant one effective opportunity to defendant no.1 for cross-examination of DW-2 Issac Nasrani, subject to payment of Rs.5,000/- as cost precedent.

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January 16, 2012

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( L. N. MITTAL ) JUDGE

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monika

B.M. Fredrick v. Phalwas Masih and Ors.

Case brief

What is this about?

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B.M. Fredrick v. Phalwas Masih and Ors.

Case brief

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