ANITA Vs. BHIM SINGH

JUDGEMENT

(1.) THE present revision petition presented under Article 227 of the Constitution of India is directed against the order dated February 26, 2014 passed by the Civil Judge (Junior Division), Pataudi extinguishing plaintiff's right to cross -examine two of the defendant witnesses namely DW -1 Bhim Singh and DW -2 Parkash Chand Saini. The evidence of two witnesses has been closed by Court order converting the examination -in -chief of both the witnesses as evidence to be read against the petitioning plaintiff. The petitioner is one of the plaintiffs who are all legal representatives of late Bahadur son of Piarey Lal from whom rights to suit property are claimed. The suit is for possession by way of partition.

(2.) FACED with the adverse order closing evidence of DW -1 and DW -2 the aggrieved plaintiff moved an application seeking permission to crossexamine the defendants on their affidavits dated February 19, 2014. It was averred that counsel for the plaintiffs could not appear before the Court on February 26, 2014 when the aforesaid witnesses were present in court and previous costs of Rs.150/ - each had been imposed on the plaintiffs to be paid to the said two defendant witnesses but were not paid. Non -appearance of the counsel was explained on account of his father taking ill who had to be shown to a medical doctor. In this way, non -appearance of the counsel was said to be unintentional and bona fide. It is contended that the plaintiffs could not be made to suffer on account of failure to cross -examine the witnesses.

(3.) THE application was contested by the defendants on the sole ground that re -opening cross -examination would delay the proceedings. The story of absence of counsel was a concocted one which is not supported by proof. The learned trial Court has observed that two effective opportunities were granted and costs imposed on February 19, 2014 were not paid. The application has been declined by reason of failure to pay costs coupled with the non -appearance of the counsel on February 26, 2014 when on the impugned order was passed. It was not that none appeared before the Court for the plaintiff as presence of Sh. Ishwar Singh, Advocate is recorded in the order sheet. He was a colleague of the counsel for the plaintiffs and had sought adjournment on behalf of his friend. The learned trial Judge has observed that the story propounded by the petitioner of illness of the father was not disclosed by the next friend of the counsel on February 26, 2014.