Gurdev Singh and Others vs The Municipal Corporation, Ludhiana and Another

L.N. Mittal, J.

C.M. No. 4894-C-II of 2012 :-

This is application for impleading legal representatives of plaintiffs No. 3 and 4 Channan Singh and Lakhbir Singh respectively (since deceased).

It is alleged in the application that Channan Singh has left behind wife and two sons, mentioned in paragraph 2(i) of the application and Lakhbir

Singh has left behind mother, wife, two daughters and a son, mentioned in paragraph 2 (ii) of the application, as their only legal heirs. The

application is accompanied by affidavit. Accordingly, the application is allowed, subject to all just exceptions and persons mentioned in paragraphs

2(i) and 2 (ii) of the application are ordered to be brought on record as legal representatives of Channan Singh and Lakhbir Singh respectively

(since deceased), for the purpose of this revision petition.

-Main Case-:

Counsel for the petitioners does not press the instant revision petition qua order dated 14.06.2011 passed by the trial court thereby closing

evidence of plaintiffs by court order.

Ordered accordingly.

The revision petition is pressed qua order dated 31.01.2012 only, vide which application Annexure P-1 filed by the plaintiffs, for recording

cross- examination of PW-4 Nazar Singh (plaintiff No. 10) on behalf of defendants- respondents, has been dismissed.

This is revision petition under Article 227 of the Constitution of India filed by plaintiffs including legal representatives of plaintiffs No. 3 and 4.

The revision petition survives qua challenge to order dated 31.01.2012 passed by learned Civil Judge (Junior Division), Ludhiana, thereby

dismissing application Annexure P-1 filed by the plaintiffs. Evidence of the plaintiffs was closed by trial court vide order dated 14.06.2011.

Thereafter, plaintiffs moved application Annexure P-1 alleging that examination-in-chief of Nazar Singh (plaintiff No. 10) as PW-4 was recorded

by way of affidavit on 24.02.2011 and thereafter, the case was adjourned on four occasions for his cross-examination, but he could not be cross-

examined because counsel for defendants was not available. Accordingly, plaintiffs prayed that cross-examination of Nazar Singh - PW-4 be

recorded because without cross-examination, his examination-in-chief could not be taken into consideration. This application has been dismissed

by trial court vide order dated 31.01.2012.

Counsel for the petitioners prayed that only one opportunity may be granted to the plaintiffs for appearance of Nazar Singh - PW-4 for his

cross-examination. Perusal of the impugned order reveals that Nazar Singh, after tendering his affidavit of examination-in-chief, did not appear for

his cross-examination, although four more opportunities were granted for his cross-examination. In all, trial court granted as many as thirty

opportunities to the plaintiffs for their evidence as against provision of only three opportunities for evidence of a party, as per proviso to Order 17

Rule 1 of the CPC (in short - CPC). However, since examination-in- chief of Nazar Singh - PW-4 has already been recorded and since he is one

of the plaintiffs and his testimony is of great importance to prove the case of the plaintiffs and without his cross-examination, even his examination-

in- chief cannot be taken into consideration, I am of the considered opinion that ends of justice would be met if plaintiffs are granted another

opportunity for putting up Nazar Singh in the witness box for his cross-examination, on payment of heavy cost.

I intend to dispose of the instant revision petition without issuing notice to defendants-respondents so as to avoid further delay in the disposal of

the suit and also to save the respondents of the expenses they may have to incur in engaging counsel for the revision petition, if notice thereof is

issued to them. Accordingly, the instant revision petition is allowed partly. The trial court is directed to grant only one more opportunity for

appearance of Nazar Singh - PW-4 for his cross-examination on behalf of defendants-respondents, subject to payment of Rs. 15,000/- as cost

precedent.