Raj Kaur & Ors. v. Beero (deceased) through her LRs & Ors.

Mr. B.S.Sewak, Advocate, for respondent No.2. ***** RAKESH KUMAR JAIN, J. (ORAL) This revision petition is directed against the order dated

14.01.2009 (Annexure P-1) by which evidence of the defendants/petitioners was closed and the order dated 24.11.2009 (Annexure P-4) by which application filed by the petitioners for recalling of DW1 and DW2 for the purpose of cross-examination, has been dismissed. In brief, the facts of this case are that the evidence of the plaintiffs was closed on 14.02.2007 and the case was fixed for evidence of the defendants. On 01.05.2007, learned Trial Court passed the following order: - “Four DWs have been examined in Chief and their cross-examination stands deferred on the request of the counsel for the plaintiff. They are bound down for 17.07.2007 when CR No.7721 of 2009 -2- ***** entire evidence of defendant will be produced.” On 17.07.2007, following order was passed by the learned Trial Court: - “One DW has been examined. Three more DWs are present but the counsel for the plaintiff seeks adjournment. They are bound down for 17.10.2007 when entire evidence of the defendant will be produced.” On 17.10.2007, following order was passed by the learned Trial Court: - “Two DWs have tendered their affidavits. But their cross examination stands deferred on request of counsel for the plaintiff. They are bound down for 30.01.2008 when entire evidence of the defendant will be produced.” On 31.01.2008, following order was passed by the Trial Court: - “Surinder Singh, Registry Clerk has brought summoned record, which has been returned to him after examination of one DW. DW1 and DW2 also present but there is rush of work of three days files, as I was on leave on last two days. They are bound down for

16.04.2008 when entire evidence of the defendant will be produced.” On 16.04.2008, one DW was examined. DW1 and DW2 were present, but they were discharged for the time being as counsel for the plaintiffs moved an application for impleading LRs of Jangiro and case was adjourned to 28.05.2008 for filing of the reply and arguments. On 28.05.2008, after impleadment of legal heirs of deceased, the case was further adjourned to 26.07.2008 for filing of CR No.7721 of 2009 -3- ***** the amended memo of parties. On 26.07.2008, the case was adjourned to 03.09.2008 for evidence of the defendants. On

03.09.2008, the case was adjourned for 05.11.2008 as no DW was present. On 05.11.2008, one DW was partly examined and following order was passed: - “One DW partly examined and his further cross-examination stands deferred as member of local bar want to go to at Hon'ble High Court where they had been called by Hon'ble Mr. Justice A.K.Mittal. He along with DW Murti is bound down for 14.01.2009 when entire evidence shall be produced by the defendant subject to last chance.” On 14.01.2009, following order was passed by the learned Trial Court: - “One DW is present. No other DW present. History of the case suggested that today is last chance for defendant to conclude their evidence, but they have failed to do so. Hence, evidence of the defendant is closed by order. To come up on 25.02.2009 for rebuttal evidence.” After passing of the impugned order, the petitioners had filed an application for recalling of DW1 and DW2 for the purpose of their cross-examination. The said application was dismissed by the learned Trial Court vide its order dated 24.11.2009 (Annexure P-4) on the ground that since the evidence of the defendants has been closed by order of the Court, therefore, they cannot be permitted to recall DW1 and DW2. Learned counsel for the petitioner has argued that the learned Trial Court has erred in the exercise of its jurisdiction not only in closing the evidence of the defendants, but also in not CR No.7721 of 2009 -4- ***** permitting the petitioners to recall DW1 and DW2 for the purpose of their cross-examination. It is submitted that at none of the stages of the suit, the petitioners were at fault because on 01.05.2007, four DWs were examined in chief but their cross-examination was deferred on the request of the plaintiffs. On 17.07.2007, one DW was examined but the case was adjourned on the request of the plaintiffs. On 17.10.2007, two DWs tendered their affidavits but their cross-examination was deferred on the request of the plaintiffs. On 30.01.2008, DW1 and DW2 were present, but due to rush of work, the Court did not allow their cross-examination. On

16.04.2008, one DW was examined and DW1 and DW2 were present, but they were discharged for the time being as counsel for the plaintiffs moved an application for impleading LRs of Jangiro. On the adjourned date, after the amendment was brought, the case was adjourned for the purpose of evidence of the defendants. On

05.11.2008, one DW was partly examined and his further cross- examination was deferred because member of the local bar had to go to the High Court for some work. On the last and the fateful day, i.e. 14.01.2009, one DW was present, but after his examination, learned Trial Court closed the evidence of the defendants by observing that history of the case shows that today is the last chance for defendants to conclude their evidence, but they failed to to lead their evidence and as such, the impugned was passed. After the impugned order was passed, the defendants, who have been cooperating with the progress of the suit, filed an application for recalling of DW1 and DW2 for the purpose of their cross- examination, but the said application was dismissed by the learned Trial Court vide its order dated 24.11.2009. It is, thus, submitted that there is no fault of the petitioners, rather the entire fault is of the plaintiffs/respondents who have, at every stage, taken a date in order to frustrate the cross-examination of the witnesses bound down for the particular date. CR No.7721 of 2009 -5- ***** In reply, learned counsel for the respondents has submitted that the fault is all attributed to the petitioners who have not led their entire evidence as directed by the Court. After examining the entire matter, I have found that the impugned orders are patently illegal and suffers from error of exercise of jurisdiction. There is no fault on the part of the petitioners in not examining their witnesses because at each and every date, their witnesses were present in the Court, they were examined in chief, but their cross-examination could not be conducted as the plaintiffs were not interested and the case was adjourned time and again on request of the plaintiffs. The delay, if any, is solely attributed to the plaintiffs. In view of the above discussion, I am of the view that this revision petition deserves to be allowed and as such, the impugned orders are hereby set aside with costs of `10,000/- which shall be paid to the defendants by the plaintiffs by way of demand draft. November 09, 2010 (RAKESH KUMAR JAIN) JUDGE