Hazara Singh vs Jagdish Kaur

G. C. Garg, J.—Bans Kaur defendant No. 1 appeared as her own witness. After the conclusion of her examinationinchief, her crossexamination on behalf of defendant No. 2 was deferred for some time but the counsel could not come present till about 4.30 p.m. Ultimately, she could not be crossexamined by defendant No. 2. The witness was consequently discharged. In this situation, defendant No. 2 moved an application with a prayer that the witness be recalled and he (defendant No. 2) may be permitted to crossexamine the witness. This request of the learned counsel for defendant No. 2 was declined by the learned Civil Judge (Jr. Divn.) by order dated 5.5.1997. Hence this revision at the instance of defendant No. 2.

In response to the notice of motion, Smt. Bans Kaur defendant No. 1 has put in appearance through Mr. K. S. Dadwal, Advocate.

Learned counsel for the petitioner submits that the counsel representing Hazara Singh, defendant No. 2 was busy in another Court and he filed his own affidavit along with the application stating that he remained busy in other Court and thus could not crossexamine the witness. It is in this situation, learned counsel submits that the petitioner may be permitted to crossexamine Smt. Bans Kaur.

Learned counsel appearing on behalf of Bans Kaur, on the other hand, submits that the witness was discharged after awaiting for the counsel and, therefore, the learned trial Judge rightly dismissed the application.

After hearing learned counsel for the parties, I am of the opinion that this revision petition deserves to succeed. The witness was discharged at about 4 p.m. and the application was moved on that very day at about 4.30 p.m. Learned counsel also filed his own affidavit that there was no negligence on the part of the counsel appearing on behalf of defendant No. 2 to cross examine the witness. It cannot, in this situation, be said that defendant No. 2 was interested in delaying the disposal of the suit. It seems to me that there is a dispute inter se the defendants.

In that view of the matter, I allow this revision petition, set aside the impugned order and permit defendant No. 2 to crossexamine Smt. Bans Kaur but subject to payment of Rs. 1,000/ as costs. Costs shall be paid to defendant No. 1 through crossed demand draft/banker''s cheque. Smt. Bans Kaur shall now appear before the trial Court so as to provide an opportunity to Hazara Singh, defendant No. 2 to crossexamine her. Since the proceedings before the trial Court were stayed by order dated 3.6.1997, the parties through their counsel have been directed to appear before the trial Court on September 22, 1997 when the trial Court shall direct defendant No. 1 to come present on the next date so that defendant No. 2 gets an opportunity to crossexamine her. In case the costs are not paid, this revision petition shall be deemed to have been dismissed.