Gurcharan Singh and Others vs Pradeep Kumar and Others

Deepak Gupta, J.—In my view, it is not necessary to summon Respondents No. 5 to 13 because they are all Defendants along with the Petitioners and their interest is similar to that of the Petitioners.

This petition is directed against the order dated 30.07.2010 in so far as the learned Court below refused the request of the Defendants to adjourn the case and recorded the evidence of the Plaintiffs. Admittedly, the witnesses of the Plaintiffs were not cross-examined. The plea set up by the counsel for the Defendants was that he could not contact the Defendants and they were not present and therefore, he could not cross-examine the witnesses. The learned Court below has observed that Defendant No. 1 Gurcharan Singh was present in person and when the learned Counsel was confronted with this fact he stated that this witness does not know anything about the facts of the case. Thereafter, the Court observed that this statement did not appear to be correct and refused to grant adjournment and thereafter recorded the statement of the witnesses. In the meantime, Defendant Gurcharan Singh left the Court without saying anything.

By means of this petition, the Defendants-Petitioners have prayed that they may be granted an opportunity to cross-examine the witnesses of the Plaintiffs. Interestingly, this petition is also filed on the affidavit of Shri Gurcharan Singh, the Defendant who was present before the learned Court below. I also find that the written statement in the case is supported by the affidavit of Gurcharan Singh. Therefore, the plea set up does not appear to be correct.

Be that as it may, the fact is that from the record it appears that the counsel himself was not prepared and therefore could not cross-examine the Plaintiffs'' witnesses. True it is that Gurcharan Singh was present and he left the Court in between which shows disrespect to the Court but I am of the considered view that since this was the first date fixed for the evidence of the Plaintiffs and since the learned Counsel for the Defendants expressed his total inability to cross-examine the Plaintiffs'' witnesses one more opportunity may be given to the Defendants to cross-examine the witnesses of the Plaintiffs. The Plaintiffs can be compensated with costs and I propose to award costs on the higher side since the conduct of the Defendant Gurcharan Singh before the Court below was highly improper.

In view of the above discussion, I direct that the Plaintiff Rajinder Singh shall appear in Court for cross-examination and the three witnesses of the Plaintiffs shall be summoned by the Defendants for purpose of cross-examination. It is the Defendants who shall bear the costs and pay the diet money, process fee, etc. for summoning all these witnesses other than the Plaintiff Rajinder Singh. The Defendants shall be permitted to take Dasti summons for services of the said witnesses and in case the witnesses are not present despite service the Court can take coercive measures to ensure their appearance in Court. The petition is disposed of in the aforesaid terms subject to payment of costs of Rs. 5,000/- by the Defendants-Petitioners to the Plaintiffs, which costs shall be paid on or before the next date. In case costs are not paid on 15th December, 2010 the present petition will be deemed to have been dismissed. The parties through their counsel are directed to appear before the learned trial Court for 15th December, 2010.