Bakshish Singh vs Ramesh Chander

Rakesh Kumar Jain, J.—This revision petition is directed against the order dated 22.10.2013 by which the opportunity of cross-examination of PW 3 has been treated as "Nil" on the ground that the defendants had already taken sufficient opportunities but failed to cross-examine the said witness. After the order was passed, an application u/s 151 CPC was also filed by the defendants for recalling of the order dated 22.10.2013. The said application was also dismissed by the Trial Court vide its order dated 14.03.2014 in which the following order was passed:-

I have heard learned counsel for both the parties and perused the case file with their assistance. Perusal of the file reveals that PW-3 Ramesh Chander (plaintiff) tendered his evidence in the form of duly sworn affidavit on 08.07.2013. At the request of learned defence counsel, case was adjourned to 12.08.2013 for cross-examination of PW 3. On 12.08.2013, learned counsel for the defendant did not appear and upon the request of proxy counsel, the case was adjourned to 04.09.2013 for cross-examination of PW 3. Perusal of order dated 04.09.2013 reveals that PW 3 was present for his cross-examination but counsel for the defendant requested for another date for cross-examination, which too was granted. Upon request of the learned counsel for the defendant, the case was adjourned to 25.09.2013 for cross-examination of PW-3. Similar story unfolded on 25.09.2013 when PW-3 was present for his cross-examination but learned counsel for defendant again requested for an adjournment in order to cross-examine the witness. Upon request of the counsel for the defendant, the case was once again adjourned to 22.10.2013 for cross-examination of PW-3. Perusal of the order dated 22.10.2013 reveals that there is specific mention of PW-3 having remained present in the court throughout the day for his cross-examination but the learned counsel for defence did not turn up. The contention of the applicant that he had come before the court after lunch when he realized that his opportunity for cross-examination was treated as nil, is factually incorrect as per the said order. After evidence was tendered by PW 3, the plaintiff, on 08.07.2013 the defence had opportunities for cross-examination on 08.07.2013, 12.08.2013, 04.09.2013, 25.09.2013 and even on 22.10.2013 when the said cross-examination was treated as nil. The witness was present on all the dates as has been specifically noted. Under given circumstances, I find no merit in application at hand. The same is hereby declined. To come up on 16.04.2013 for defence evidence.

On the last date of hearing, counsel for the petitioners was directed to produce on record the zimni orders dated 04.09.2013 and 25.09.2013.

Accordingly, the petitioners have filed CM No. 14321-CII-2014 along with an affidavit of petitioner no. 1 in which the aforesaid two zimni orders have been mentioned.

The application is allowed and the affidavit is taken on record.

The orders dated 04.09.13 and 25.09.2013 read as under:-

Present: Sh. Rakesh Dhir, Adv., Counsel for the plaintiffs.

Sh. Vipan Kumar, Adv., Counsel for the defendants.

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PW 3 is present for cross-examination but counsel for defendant requested for a date for cross-examination, which is granted. To come up on 25.09.2013 for cross-examination of PW 3 and remaining evidence of plaintiff.

Dated: 04.09.2013

Sd/- Gursher Singh CJJD/Jalandhar

Present: Sh. Rakesh Dhir, Adv., Counsel for the plaintiffs.

Sh. Vipan Kumar, Adv., Counsel for the defendants.

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PW 3 is present for cross-examination but counsel for defendant requested for a date for cross-examination, which is granted. To come up on 22.10.2013 for cross-examination of PW 3 and remaining evidence of plaintiff.

Sd/- Gursher Singh CJJD/25.09.2013

Counsel for the petitioners has argued that PW 3 is the plaintiff who is required to be cross-examined and has submitted that his cross-examination could not be conducted by the counsel because he was busy in some other Court. It is also submitted that only one opportunity may be granted, subject to payment of costs, so that the said witness may be cross-examined by the petitioners.

After hearing learned counsel for the petitioners and examining the record, I am of the considered opinion that this revision petition deserves to be dismissed.

There is no dispute that PW 3 was present in the Court for cross-examination but without assigning any reason prayer for adjournment was made, date was granted by the Trial Court and the cross-examination was deferred for 04.09.2013. On the next date, PW 3 was present but again the same thing happened, the case was adjourned to 25.09.2013 for his cross-examination and the remaining evidence of the plaintiff. On the fateful day, i.e. 22.10.2013, the case was again fixed for cross-examination of PW 3 who remained present in the Court throughout the day but counsel for the petitioners did not turn up. Consequently, the Court recorded that PW 3 had tendered his affidavit in his examination-in-chief on 08.07.2013 and remained present for the purpose of his cross-examination on 04.09.2013 and 25.09.2013 as well as on the date when the impugned order dated 22.10.2013 was passed but no reason is mentioned there for non-appearance of the counsel for the defence for the purpose of cross-examination of the said witness. Ultimately, there was no other alternative with the Court but to pass the order of treating cross-examination as "Nil" as sufficient opportunities were already granted. The evidence of the plaintiff was accordingly closed and the case was fixed for the evidence of the defendants. Thereafter, the petitioners, instead of challenging the said order before this Court by way of a revision petition, chose to file an application u/s 151 CPC for recalling of the order alleging that the counsel for the defendants was busy in some other Court and when he appeared before the Court, he came to know that the cross-examination has been treated as "Nil". He has thus claimed innocence in not appearing in the Court at the time when the case was called for hearing. However, the learned Trial Court passed a detailed order on 14.03.2014 while dismissing the said application.

During the course of hearing, the learned counsel for the petitioners was asked to disclose as to why their counsel did not appear when the case was called for the purpose of cross-examination of PW 3. In reply, it is submitted that he was busy in some other case, therefore, he could not appear. The counsel for the petitioners was again asked to disclose the particulars of the case and Court in which he was busy but he showed his ignorance and rather argued that one more opportunity be granted, subject to payment of costs.

The amendment brought in the CPC for filing written statement within 90 days and granting three opportunities to the parties to lead their respective evidence was to accelerate the disposal of the civil suits which are lingering on for years together. The plaintiff made himself available as PW 3 thrice for the purpose of cross-examination by the defendants but counsel for the defendant did not avail the opportunity when offered, rather asked for adjournments repeatedly without assigning any reason thereto. One can understand that the counsel for the defendant was in personal difficulty of some sort for which a date could be given and could be accommodated, but asking for adjournment as a routine has to be strongly deprecated. The Trial Court, in my view, was quite magnanimous while granting at least three opportunities to the defendants for cross-examination of the said witness, but those opportunities were not availed rather an application was filed for re-calling of the order.

In these circumstances, where there is no reason given either for seeking adjournment to cross-examine the witness who is present in the Court or where repeated adjournments are sought by the party who is to cross-examine the witness, who is regularly present in the Court for the said purpose, no error could be said to have been committed by the Trial Court in closing his opportunity of cross-examination.

In view thereof, the present revision petition is found to be without any merit and hence, the same is hereby dismissed.