MUSHTAQ Vs. ISMAIL

JUDGEMENT

(1.) Mushtaq has filed this petition against the order the learned Subordinate Judge first Class, Malerkotla, by which his application for recalling the Qanungo for cross-examination, was rejected.

(2.) The facts on which there is no dispute are that Dari Mal Qanungo, was examined as witness on 7th September, 1974, that on that date the defendants' counsel was not present, that the defendants did not cross-examine the said witness, that on the same day he filed an application praying that his counsel was away and for that reason he could not cross-examine the Qanungo and that he may be recalled for cross-examination. This prayer of the defendant was rejected by the learned Subordinate Judge vide impugned order.

(3.) After hearing the learned counsel for the parties, in the circumstances, I am of the view that the impugned order cannot legally be sustained. It is correct that defendant was afforded an opportunity of cross-examining the witness, but it can straightaway be envisaged that for a layman like the petitioner, it would not have been possible to cross-examine the Qanungo. This is quite apparent from this fact that the plaintiff when he appeared as his own witness, was cross-examined by the defendant. The defendant on that very day made an application for the recalling of the witness for cross-examination and in the interest of justice, the learned Subordinate Judge should have allowed that prayer. It is stated at the bar by the learned counsel for the parties that the evidence of the plaintiffs is still to be recorded. In this view of the matter, I allow this petition set aside the impugned order and direct that an opportunity shall be afforded to the petitioner to recall Dari Mal Qanungo, for cross-examination only. For the unnecessary inconvenience to which the plaintiffs have been put, the defendant shall pay Rs. 50/- as costs before summoning for cross-examination Dari Mal Qanungo. In case the costs are not paid, then the Qanungo shall not be summoned. The parties through their learned counsel are directed to appear before the trial court on 29th September, 1975. In the circumstances of the case, I make no order as to costs, so far as this petition is concerned. The office is directed to send immediately the records pertaining to this case to the trial Court.