Puran Chand vs Ram Saran and Others

Rajiv Sharma, J.—This petition is instituted against order dated 8.7.2011 rendered by learned Civil Judge (Senior Division) Kasauli, Solan in CMA No. 149/6 of 2011 in Civil Suit No. 12/1 of 2010.

Pertinent facts necessary for the adjudication of this petition are that respondents-plaintiffs (herein referred to as ''plaintiffs'' for convenience sake) have filed a suit for permanent prohibitory injunction u/s 38 of the Specific Relief Act, 1963, seeking decree of permanent injunction restraining the petitioner-defendant No. 1 and other defendants (herein after referred to ''defendant(s)'' for convenience sake), from marking, cutting, felling and removing any type of tree from the suit land, ousting the plaintiffs from the suit land in their possession, causing any type of damage to the suit land, making any addition or alterations in the same, digging/excavating, changing nature of the suit land, raising any type of construction on any portion of the suit land except by way of partition.

Written statement was filed by the defendants. Issues were framed by the trial Court on 14.7.2010. Evidence was tendered by the plaintiffs by way of affidavits on 23.8.2010. Plaintiffs'' witnesses were cross-examined by the defendants. Copies of affidavits were supplied to the defendants well in advance. However, defendants have moved an application u/s 151 of the CPC for further cross-examination of the plaintiffs'' witnesses. According to the averments contained in the application, defendants have taken plea of adverse possession and ouster against the plaintiffs. However, during the course of cross-examination, the plea of adverse possession and ouster could not be put to plaintiffs'' witnesses. They also wanted to put certain documents to the plaintiff''s witnesses. The application was contested by the plaintiffs. According to them, the plaintiffs have closed their evidence on 1.11.2010. Plaintiffs'' witnesses have been cross-examined at length. Defendants have not given the details of the documents which they intended to put to the plaintiff''s witnesses by way of further cross-examination. According to the plaintiffs, application was filed just to delay the proceedings.

I have heard learned counsel for the parties and gone through order dated 8.7.2011. Civil Suit No. 12/1 of 2010 was filed in the month of January 2010. Issues were framed on 14.7.2010. Evidence of the plaintiffs was closed on 1.11.2010. Plaintiffs have led their evidence by way of affidavits and copies of affidavits were supplied to the defendants well in advance. Plaintiffs'' witnesses were cross-examined at length. Defendants were given three chances to produce their evidence. However, defendants instead of leading their evidence, have filed an application u/s 151 of CPC seeking permission to further cross-examine plaintiffs'' witnesses. Application filed by the defendants is misconceived. Defendants ought to have put all the relevant questions to the plaintiffs'' witnesses in cross-examinations. They can not be permitted to fill-up lacunae in the case. They have not even disclosed the detail of documents which they wanted to put to the plaintiffs'' witnesses in further cross-examination. Defendants have already been given even last opportunity to lead their evidence subject to costs. Entire exercise has been taken by the defendants to delay the proceedings pending before the Civil Judge (Senior Division), Kasauli.

This Court in Akash Vs. Gian Singh and Others, has held that further cross-examination of the witnesses already cross-examined, can not be permitted merely on the change of the counsel. The Court has held as under:

It has been alleged that witnesses of respondent No. 1 have not been cross-examined regarding the adverse possession of petitioner and respondents No. 2 to 8, by inadvertence of the counsel for petitioner and respondents No. 2 to 8. The learned counsel for the petitioner has submitted that under these circumstances, the application was filed for recalling the witnesses of respondent No. 1. The court below has erred in not allowing the application.

The emphasis of submissions of learned counsel for the petitioner is that necessity to file the application, under Order 18 Rule 17 CPC has arisen as the witnesses of respondent No. 1 were not cross-examined on the point of adverse possession of petitioner and respondents NO. 2 to 8. The onus to prove the adverse possession of petitioner and respondents No. 2 to 8 as per their plea should be on them. It appears due to inadvertent error at the time of framing of issues on 26.11.2008, under issue No. 4 word "plaintiff" has crept in, instead of "defendants", but that makes no difference in view of controversy in the present petition. The petitioner is aware of the controversy and his plea of adverse possession as taken in the written statement.

In the present case, the application under Order 18 Rule 17 CPC read with Section 138 of Indian Evidence Act is not signed by any advocate. This application was presented in the court by Sh. Lokinder Sharma, Advocate. The only ground to recall the witnesses of respondent No. 1 for their cross-examination is that the counsel representing the petitioner and respondents No. 2 to 8 did not cross-examine the witnesses effectively due to inadvertence on the point of adverse possession. The cross-examination conducted by the counsel for the petitioner and respondents No. 2 to 8 has already been noticed above. There is nothing gin the application that some material facts which came to the notice of petitioner and respondents No. 2 to 8 after the cross-examination of the witnesses of respondent No. 1 are required to be put to the said witnesses. The effective cross-examination is a very vague term used by the petitioner for recalling the witnesses of respondent No. 1 for cross-examination. The further cross-examination of the witness already cross examined cannot be permitted merely on the change of counsel with the purpose to fill up the lacunae left in the case. There is no error of jurisdiction when the learned Civil Judge has dismissed the application of petitioner and respond dents No. 2 to 8. No case for interference is made out.

In this case also, according to defendants, witnesses of plaintiffs have not been cross-examined regarding adverse possession due to inadvertence on the part of their counsel.

Order dated 8.7.2011 is in conformity with law. There is no illegality or any perversity in the order dated 8.7.2011, passed by learned Civil Judge (Senior Division), Kasauli.

In view of the analysis and discussion made herein above, there is no merit in the petition and same is dismissed. Pending applications, if any, also stand disposed of. No costs.