Gurjant Singh vs Jatinder Pal Singh and Another

L.N. Mittal, J.—Defendant no. 2 Gurjant Singh has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India assailing order dated 31.08.2012 passed by the trial court, thereby dismissing application (Annexure P-5) filed by the petitioner. Suit has been filed by respondent no. 1 - plaintiff Jatinder Pal Singh against respondent no. 2 as defendant no. 1 - Kaka Singh @ Harvinder Singh and against petitioner Gurjant Singh as defendant no. 2 vide plaint (Annexure P-1) inter alia challenging sale deed dated 11.01.2006 executed by defendant no. 1 as attorney of the plaintiff in favour of defendant no. 2.

Defendant no. 1 appeared as DW-4 and tendered his affidavit of examination-in-chief on 19.01.2012 and his cross-examination was deferred. Defendant no. 1 was cross-examined by counsel for the plaintiff on 16.03.2012. Thereafter, defendant no. 2-petitioner filed application dated 29.05.2012 (Annexure P-5) seeking recall of defendant no. 1 for cross-examination by defendant no. 2 alleging that defendant no. 2 in his written statement (Annexure P-2) has alleged collusion of plaintiff with defendant no.1, and therefore, it was necessary to provide opportunity to defendant no. 2 to cross-examine defendant no. 1, but no such opportunity was given to defendant no. 2.

The plaintiff, by filing reply (Annexure P-6), opposed the application and controverted the averments made therein.

Learned trial court, vide order Annexure P-7, has dismissed application (Annexure P-5) filed by defendant no.2, who has, therefore, filed this revision petition to challenge the said order.

I have heard counsel for the petitioner and perused the case file, whereas none has appeared for respondents in spite of service and adjournments.

Counsel for the petitioner contended that since defendant no. 2-petitioner has alleged collusion of plaintiff and defendant no. 1, it was necessary to afford opportunity to defendant no. 2 to cross-examine defendant no. 1, but no such opportunity was granted, and therefore, opportunity is required to be granted to defendant no. 2 for cross-examination of defendant no. 1. There is considerable merit in the contention. Perusal of cross-examination (Annexure P-4) of defendant no. 1 reveals that he was cross-examined by counsel for the plaintiff only and no opportunity was afforded for cross-examination of defendant no. 1 on behalf of defendant no. 2. The trial court has erroneously observed in the impugned order that defendant no. 2 himself did not avail of the opportunity of cross-examining defendant no. 1. The trial court had to grant the opportunity and if defendant no. 2 did not avail of the same, it had to be recorded that opportunity had been granted and there was no cross-examination on behalf of defendant no. 2. However, no such opportunity was granted to defendant no. 2 for cross-examination of defendant no. 1, as is evident from his cross-examination (Annexure P-4). On the other hand, defendant no. 2, in his written statement (Annexure P-2), has specifically pleaded that the suit has been filed by the plaintiff in collusion with defendant no. 1. In view thereof, defendant no. 2 deserves opportunity to cross-examine defendant no. 1, notwithstanding that defendant no. 1 in his examination-in-chief has denied the plaintiff''s averments.

For the reasons aforesaid, I find that impugned order passed by the trial court suffers from illegality and jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order (Annexure P-7) passed by the trial court is set aside. Application (Annexure P-5) filed by defendant no. 2-petitioner is allowed. Defendant no. 1 (DW-4) is ordered to be recalled for cross-examination by defendant no. 2-petitioner. After cross-examination by defendant no.2, opportunity shall also be granted to the plaintiff for further cross-examination of defendant no. 1, if so desired by the plaintiff.