SEWAK SINGH Vs. BIKKAR SINGH AND ORS.

JUDGEMENT

(1.) HAVING read the order sheet of different dates, assisted by the learned counsel, when this matter was taken up for preliminary hearing there is little doubt left that sufficient accommodation was shown by the learned trial court to the plaintiff to lead his evidence. Party was subjected to last opportunity as well. On December 20, 2013 the examination -in -chief of one of the plaintiffs witnesses was recorded. The cross -examination was deferred on request of the counsel for the defendant, the petitioner before this Court, and the witness was bound down to appear in the witness box on January 20, 2014. The remaining witnesses were to be produced on the next date of hearing by the plaintiff on his own responsibility. On January 20, 2014 it is recorded in the zimni that no PW was present and as such they were summoned for the next day i.e. January 21, 2014 when also no PW was present The case was set down to January 27, 2014 for recording of plaintiffs evidence. On January 27, 2014 the impugned order was passed against the defendant debarring cross -examination of PW Bikkar Singh and PW Harinder Singh. The trial Court has treated the opportunity to cross -examine the two witnesses as 'Nil'. The trial court having so done, the plaintiff has thereafter taken three successive dates to produce his remaining evidence i.e. on February 28, 2014, March 19, 2014 and April 3, 2014 but has failed to produce. Plaintiffs conduct post impugned order deserves to be factored in to balance the competing interests justly and equitably so as not infringe each others rights to a fair trial. In the circumstances, the Civil Judge (Junior Division), Bathinda does not manifestly appear to have exercised his discretion in a judicious manner in closing the cross -examination at the hands of the defendant of his opponent's oral evidence converting the examination -in -chief of Bikkar Singh, and Harinder Singh into evidence without contest. The learned trial judge could have easily posted the matter for another date by resort to inter alia Section 35A of the Code of Civil Procedure, 1908 or by adopting any other measure including grant of last opportunity to the defendant after weighing all the attending facts and circumstances for and against before denying right to cross -examination. The ultimate path chosen by the learned judge would need to be tested on the principles of justice whether his action would be in avoidance of miscarriage of justice or not. If the evidence of the two PWs is left undisturbed it would put the petitioner -defendant to unmerited disadvantage which could never be compensated. Therefore, in order to secure the ends of justice it would do better to interfere today in the matter in revision and undo the deleterious effect of the word 'Nil' from the record.

(2.) IN interdicting the impugned order I think notice to the respondent by this Court is absolutely essential to be given to hear them out as no prejudice will be caused to them if there witnesses are allowed to be cross -examined by the defendant and especially when after closing the evidence the plaintiffs are still unable' on three dates to lead their evidence. Issuance of notice at this stage would only delay the plaintiffs suit and put them to unnecessary expenditure as it may become necessary to stay the trial in the interim to await final decision and that too on a trifling issue raised in this petition for permission to cross -examine two witnesses. In any event, it would be better if the lis is decided after full contest on merits. It is also not a fit case in my view to inflict costs in favour of the plaintiff only to offer lip service to law especially when the plaintiffs have themselves delayed their own suit by not leading their remaining evidence. It may be kept in mind that the defendant's evidence is yet to begin.