JASBIR KAUR Vs. KULDEEP SINGH SIDHU

JUDGEMENT

(1.) THE plaintiff has filed the present revision under Article 227 of the Constitution of India for challenging the order dated 29.11.2012 (Annexure P-1) passed by the trial Court whereby her prayer for tendering affidavits of her witnesses was declined and also the order dated 30.11.2012 (Annexure P-2) whereby the case was adjourned only for the purpose of cross-examination of PWs 1 and 5.

(2.) COUNSEL for the plaintiff/petitioner submitted that though the suit was filed in the year 2007 yet the issues were framed only on 18.4.2012. Subsequent thereto, directions were issued by the District Judge to decide the suit preferably within six months vide communication dated 16.6.2012. On 7.5.2012, Gajender Pal Singh, attorney of the plaintiff, appeared as PW1 and submitted his affidavit by way of examination-in-chief. His cross-examination was deferred on the request of counsel for defendant No.2, who is the only contesting defendant as defendant No.1 stood proceeded against ex parte. On the adjourned date, i.e. 21.5.2012, PW1 was cross-examined though not fully. His remaining cross-examination was deferred and it was directed that the remaining evidence be also produced on the adjourned date. On 14.6.2012, PW1 was present for the cross- examination. However, on request made by counsel for defendant No.2, the case was adjourned to 1.8.2012. On 1.8.2012, PW1 was subjected to further cross-examination. His remaining cross- examination was deferred on request of counsel for defendant No.2. Similar exercise was conducted on the next two dates, i.e. 21.8.2012 and 1.9.2012 when remaining cross-examination of PW1 was deferred to 25.9.2012. Remaining PWs were also summoned. On 1.9.2012, the plaintiff moved an application for consolidation of two other suits qua the same property with the present suit, which application was finally dismissed on 2.11.2012 and the case adjourned to 9.11.2012 for evidence of the plaintiff. On 9.11.2012, PW2 Anil Kumar, PW3 Anil Sharma and PW4 Surinder Singh tendered their affidavits Exs.PB, PC and PD, respectively and documents Ex. P-105 to P-130 as examination- in-chief. Their cross-examination was deferred to 16.11.2012. On 16.11.2012, no PW was present and the case adjourned to 19.11.2012 for cross-examination of PWs 1 to 4 as well as for remaining evidence of the plaintiff. On 19.11.2012, PW1 and PW3 were cross-examined, though not fully. On request, the case was adjourned to 29.11.2012 for their remaining cross- examination as well as remaining evidence of the plaintiff at her own responsibility. On 19.11.2012 itself, the plaintiff deposited a sum of Rs.950/- as diet money vide receipt No.4393 for summoning official witnesses, pursuant to order passed on her application on 17.11.2012 filed for the said purpose. On 29.11.2012, cross-examination of PW1 was not concluded and on request made by counsel for defendant No.2, the same was deferred. On 30.11.2012, the cross-examination of PW1 was not concluded and the case was adjourned to 3.12.2012 for remaining cross-examination of PW1 as well as for recording the testimony of PW5 and PW6, whose affidavits were tendered by way of their respective examination-in-chief on the said date. However, the trial Court did not allow the plaintiff to produce those official witnesses for whom diet money stood deposited on 19.11.2012. Counsel for the plaintiff/petitioner also submitted that PWs 1 to 4 already stood examined. Only PWs 5 and 6 remained to be cross-examined on behalf of the defendants. Besides, out of the various officials sought to be examined by the plaintiff, only three of them, namely, Albel Singh, Patwari, Barewal, Ludhiana, Pritpal Singh, Naib Tehsildar (Retd.), Ludhiana and concerned Ahlmad of the Court of Sh. Munish Arora, CJM, Ludhiana along with file of case titled 'State Vs. Pardeep Singh' FIR No. 119 dated 23.4.2010, Police Station Sarabha Nagar, Ludhiana are required to be examined. It was further submitted that on 29.11.2012, the trial Court had adjourned the case for cross-examination of PW1 for the following day and no order was passed that any more affidavits would not be taken into evidence of the plaintiff or the case was being adjourned only for the cross-examination of PW1. It was primarily for that reason that on the following day, the plaintiff was allowed to tender in evidence affidavits of PWs 5 and 6 by way of their respective examination-in-chief. Even counsel for defendant No.2 did not object to the tendering of the affidavits of PWs 5 and 6 on 30.11.2012 and only on 3.12.2012 that he filed an application for de-exhibiting the affidavits of PWs 5 and 6, besides documents Exs. P1/1, P4/1, P6/1, P7/1 and P8/1, which were tendered by them alongwith their respective affidavits. Prayer was, accordingly, made for granting one last opportunity to the plaintiff for producing PWs 5 and 6 before the trial Court for the purpose of their cross-examination at the instance of the defendants and for producing aforementioned three official witnesses, who could not be examined on 30.11.2012, despite being present before the trial Court.

(3.) HAVING heard counsel for the parties, this Court finds that though on 14.6.2012, the trial Court while adjourning the case to 1.8.2012 for further cross-examination of PW1, had bound down the other witnesses present for the said date and granted last opportunity to the plaintiff to examine her remaining evidence yet a perusal of the various zimni orders passed by the trial Court and reproduced in paras 5 to 8 of the revision, it is made out that defendant No.2 has literally tried to exhaust the plaintiff by cross- examining her attorney PW1 Gajender Pal Singh in parts and on a number of occasions. Said PW1 was examined-in-chief in the shape of affidavit on 7.5.2012. Thereafter, he was subjected to cross-examination on 21.5.2012, 14.6.2012, 1.8.2012, 21.8.2012, 1.9.2012, 19.11.2012, 29.11.2012 and 30.11.2012. It is another thing that his cross-examination has since been completed. PWs