Hoshiyara vs Jagmal

L.N. Mittal, J.—Defendant Hoshiyara has filed this revision petition under Article 227 of the Constitution of India impugning order dated 6.4.2012, Annexure P/1 passed by learned Additional Civil Judge (Senior Division), Narwana. Suit has been filed by respondent -plaintiff Jagmal against defendant petitioner for possession of suit property by specific performance of the agreement to sell. On 26.9.2011, three witnesses of the plaintiff including plaintiff himself appeared and tendered their affidavits of examination in chief. However, their cross-examination was deferred because counsel for defendant -petitioner was not available, although otherwise it was last opportunity for plaintiff''s evidence. Ultimately on 2.4.2012 cross-examination of two witnesses was recorded but the third witness Virender did not appear for his cross-examination. Learned trial court vide impugned order Annexure P/1 closed plaintiff''s evidence and adjourned the case for 29.5.2012 for evidence of defendant but also granted opportunity to the plaintiff that if the aforesaid witness (Virender) appears on the next date of hearing, his cross-examination shall be recorded before commencing evidence of defendant. Feeling aggrieved by aforesaid opportunity given to the plaintiff, defendant has filed this revision petition.

I have heard learned counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that there was no occasion for granting another opportunity to the plaintiff for producing Virender for his cross-examination when evidence of the plaintiff was being closed by court order. The contention cannot be accepted. On 26.9.2011 when examination in chief of three witnesses including Virender was recorded, their cross-examination had to be deferred because counsel for the defendant - petitioner himself was not available. In these circumstances, granting of one more opportunity to the plaintiff for producing Virender for cross-examination does not require interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The trial court has exercised its discretion in the matter which cannot be said to be perverse or illegal. Remaining evidence of the plaintiff has been closed by court order by the trial court and liberty has been given only for cross-examination of Virender if produced on the next date of hearing before commencing the evidence of defendant - petitioner. For the reasons aforesaid, I find no merit in this revision petition which is accordingly dismissed in limine.