Kuldip Kumar and another vs Shakuntla

Vijender Singh Malik, J.—The plaintiffs, Kuldip Kumar and Smt. Amita Rani have brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 28.9.2011 (Annexure P1) passed by learned Additional Civil Judge (Senior Division), Amritsar vide which their evidence has been closed by order of the court.

The petitioners have filed suit for possession by way of specific performance of agreement of sale dated 13.4.2007 executed by the respondent in their favour in respect of a residential house. The petitioners have already examined all the witnesses to prove their case. It was petitioner No. 1, Kuldip Kumar who is left to be cross-examined because his examination-in-chief already stood recorded by way of his duly sworn affidavit (Ex.PW-6/A). As, on 28.9.2011 no evidence of the plaintiffs was present, learned trial court found no sustainable request to have been made for adjournment and as the case was an oldest one in which numerous opportunities had been given to the plaintiffs to conclude their evidence, the evidence of the plaintiffs was closed by court order.

I have heard Mr. Vivek Salathia, learned counsel for the petitioner and have gone through the record carefully.

Learned counsel for the petitioners has submitted that Kuldip Kumar, petitioner No. 1 had appeared as PW-6 and his examination-in-chief was recorded by way of his affidavit. He referred me to various orders passed on the order sheet of the suit, extracted in the grounds of revision. According to him, petitioner No. 1 could not be cross-examined on various occasions for non availability of counsel for the defendant. According to him, learned trial court did not keep in mind this fact and closed the evidence of the plaintiffs on 28.9.2011, when he could not appear in the court. He has, thus, submitted that one opportunity may be given to plaintiff No. 1 to present himself for cross-examination because in the absence of cross-examination, his statement cannot be read in support of his case.

I have perused the orders passed on the order sheet of this case, as extracted in the grounds of revision. On 18.11.2010, the plaintiff appeared for cross-examination and his cross-examination could not be undertaken by the court for non availability of learned counsel for the defendant. On the next date, i.e., 16.12.2010, the case was again adjourned for non availability of counsel for the defendant. On 1.2.2011, the next date, no PW was present. Same was the position on 2.6.2011. In between the two dates, the file could not be taken up on 28.4.2011 for which it had been adjourned for non availability of the court. On 17.8.2011, Kuldip Kumar was again present but his cross-examination could be conducted for non availability of learned counsel for the defendant. In these circumstances, it cannot be said that Kuldip Kumar has been totally negligent in conduct of his case. He had appeared on more than a couple of occasions and he was not cross examined for non availability of learned counsel for the defendant. In these circumstances, to close the evidence of the plaintiffs on the date, when petitioner No. 1 was not appearing would amount to injustice to the plaintiffs.

In these circumstances, I accept the revision petition, set aside the impugned order and direct learned trial court to give one opportunity to the petitioner/plaintiff No. 1 to present himself for cross-examination.