Boota Singh vs Shri Shiv Durga Mandir Parbandhak Committee

B.S. Walia, J

[1] Challenge in the revision petition is to order dated 04.12.2018 passed by the learned Civil Judge (Jr. Div.), Jalandhar treating opportunity to cross-examine PW Prem Singh as nil.

[2] Learned counsel for the petitioner contends that cross-examination of PW Prem Singh was treated as nil on account of none being present on behalf of the petitioner/defendant. Learned counsel, states that the order is contradictory for not only does it reflect the presence of Shri Ashok Paruthi, Advocate for the petitioner/defendant but in the body of the order, cross examination of PW Prem Singh is treated as Nil on account of none being present on behalf of the petitioner/defendant. Learned counsel however fairly concedes that Shri Ashok Paruthi, Advocate for the petitioner/defendant was not present as he was busy in another Court and it was the petitioner/defendant who made a request in person to the Court of the learned Civil Judge (Jr. Div.), Jalandhar for pass-over but was told that the case had been adjourned. Thereupon, the petitioner/defendant informed his counsel who was busy in another Court of the case having been adjourned. However, on the subsequent date it was learnt that the cross-examination of PW Prem Singh had been treated as nil. Learned counsel contends that the inability to cross-examine PW Prem Singh was solely on account of counsel for the petitioner/defendant being busy in another Court and the petitioner having made request for pass-over but the said request not having been noted and the petitioner defendant having been told that the case had been adjourned whereas, although the case was adjourned, the same was by treating the cross examination of PW Prem Singh as nil, opportunity given, by observing that none was present on behalf of the defendant to cross-examine PW Prem Singh.

Learned counsel states that in case the impugned order was not set aside, grave prejudice would be caused to the petitioner, therefore, one opportunity be granted subject to such conditions as may be deemed appropriate with regard to imposition of costs.

[3] Learned counsel for the respondent has not seriously opposed the grant of opportunity to cross examine PW Prem Singh but states that the same should be subject to imposition of costs.

[4] The impugned order does not record the number of opportunities availed by the petitioner/defendant earlier for cross examining PW Prem Singh but in view of the facts and circumstances as recorded above, one final opportunity ought to have been granted before passing the impugned order. Accordingly, after taking into account all aspects of the matter and in view of the stand of the learned counsel for the respondent, I am of the considered opinion that it would be in the interest of justice that one opportunity is granted to the petitioner/defendant to cross-examine PW Prem Singh subject to payment of costs to the respondent/plaintiff.

[5] Accordingly, impugned order dated 04.12.2018 is set aside. Petitioner/defendant is granted one effective opportunity to cross-examine PW Prem Singh subject to payment of costs of Rs.7,000/-.

[6] Learned trial court to grant one opportunity to the petitioner defendant to cross examine PW Prem Singh subject to payment of Rs. 7,000/- as costs by the petitioner defendant to the respondent plaintiff on parties producing certified copy of this order. Revision petition allowed, in the aforementioned terms.