Punjab-Haryana High Court
M/S S. K. Bimal Kumar And Another vs Unknown on 19 March, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
Civil Revision No. 1505 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 1505 of 2011 (O&M)
Date of decision: 19.3.2012
M/s S. K. Bimal Kumar and another
.. Petitioners
v.
M/s Nanak Singh and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. K. S. Rekhi, Advocate for the petitioners.
Mr. Anil Chawla, Advocate for respondents No. 1 to 5.
...
Rajesh Bindal J.
Challenge in the present petition is to the order dated 22.1.2011, passed by the learned court below, whereby the application filed by the petitioners-defendants No. 8 and 16 seeking permission to cross-examine D.W. 17- Om Parkash produced by defendants No. 4 and 13, was dismissed.
Briefly, the facts of the case are that respondents No. 1 to 5/plaintiffs filed a suit for permanent injunction restraining the defendants from interfering in day to day running of their business by demolishing or dismantling the roof shown in the site plan or from putting any sort of hindrance. The plaintiffs claimed to be tenants on the roof of the shops, situated at Bazar Kanak Mandi, Amritsar bearing No. 198/V-3 Old and New Nos. 1189/6-7 to 1196/6-7 and 356/6 to 360/6 belonging to Mandir Lala Mahesh Dass Kapoor Trust, Amritsar (for short, 'the Trust'). It is claimed in the suit that respondent No. 1/plaintiff No. 1 was inducted as tenant on the suit property by the Trust in the year 1960-61 @ ` 10/- per month, which was enhanced from time to time. As some of the tenanted premises had been sold, the buyers thereof were creating hurdles in enjoyment of property by the plaintiffs.
In the written statement filed by defendants No. 4 and 13, it Civil Revision No. 1505 of 2011 [2] was admitted that the plaintiffs are in possession of the suit property as tenants. The other defendants filed their separate written statement disputing the claim of the plaintiffs, however, stating that previous owner of the property had informed that the plaintiffs were licensees over the suit property which was given to them for use for drying the paddy on small portion above the shops of Kirpal Singh and Gurdial Singh, i.e., defendants No. 4 and 5 in the suit. Defendants No. 4 and 13 produced D.W. 17-Om Parkash as a witness. In his examination-in-chief, he inter- alia stated that terrace of the building in dispute was being used by Waheguru Singh, Nanak Singh and others for drying their business articles as licensees. He was cross-examined by the plaintiffs. However, the defendants other than Nos. 4 and 13, who had produced the aforesaid witness, filed application seeking to cross-examine for the reason that in fact defendants No. 4 and 13 had connived with the plaintiffs and were supporting their case. The application having been rejected, two of the defendants, namely, defendants No. 8 and 16 have filed the present petition in this court.
Learned counsel for the petitioners submitted that the suit filed by the plaintiffs itself was not maintainable for the reason that even though injunction was sought and the claim of the plaintiffs was that they are tenants under the Trust, but still the Trust has not been impleaded as defendant in the suit. Two of the defendants, namely, defendants No. 4 and 13 filed written statement admitting the case set up by the plaintiffs regarding tenancy on the suit property. In support thereof, D.W.17- Om Parkash was produced as a witness, who stated in his examination-in-chief that the plaintiffs were licensees on the property in dispute. He further submitted that stand of the defendants other than defendants No. 4 and 13 in their written statement is that the case set up by the plaintiffs is totally false. At the most, as has been informed by the landlords, the plaintiffs were licensees for drying their paddy on roof top of shops owned by defendants No. 4 and 5- Kirpal Singh and Gurdial Singh. Under these circumstances, the other defendants certainly have a right to cross-examine the witness produced by defendants No. 4 and 13, who have admitted the case set up by the plaintiffs, as the same would adversely affect their Civil Revision No. 1505 of 2011 [3] interest. In support of the submissions, reliance was placed upon M/s Ennen Castings (P) Ltd. v. M. M. Sundaresh and others, 2003(3) Civil Court Cases 526 (Karnataka) and Pritpal Singh Aurora v. Rajinder Singh Aurora and others, 2009(3) RCR (Civil) 574 (P&H).
On the other hand, learned counsel for respondents No. 1 to 5/plaintiffs submitted that nothing as such has been stated by D. W. 17- Om Parkash produced by defendants No. 4 and 13 in his examination-in- chief, which would entitle the other defendants to cross-examine him. He had merely supported the case of the defendants. Anything said by a witness produced by one of the defendants in his cross-examination conducted by the plaintiffs will not entitle the other defendants to cross- examine him unless there is an issue in terms of which a lis between the co-defendants is to be decided. The case set up by the petitioners in the application filed was only on the basis of the statement made by D.W. 17- Om Parkash in his cross-examination. He further submitted that even in his cross-examination, petitioner No. 1 stated that he or the other defendants have no intention to dispossess the plaintiffs unless in due course of law. Under these circumstances, the petitioners cannot be permitted to cross- examine the witness.
Heard learned counsel for the parties and perused the paper book.
The issue is as to whether the petitioners-defendants No. 8 and 16 deserve to be granted opportunity to cross-examine a witness produced by defendants No. 4 and 13. As has already been noticed, the plaintiffs claimed themselves to be the tenants on the suit property which fact was denied by all the defendants except defendants No. 4 and 13, who admitted this claim in their written statement. In his examination-in-chief, D.W. 17- Om Parkash produced by defendants No. 4 and 13, stated that terrace of the premises in dispute was being used by Waheguru Singh, Nanak Singh and others for drying their business articles as licensees. In his cross- examination, he inter-alia stated that Waheguru Singh had been locking the wooden gate below the stairs for the last 30-35 years. The witness was not knowing the terms and conditions on which Waheguru Singh had taken the roof on rent. In the present case, the plaintiffs had filed the suit Civil Revision No. 1505 of 2011 [4] for injunction claiming that they are tenants on the property in dispute under the Trust, still the Trust has not been impleaded as a party.
Considering the different stands being taken by different sets of defendants, two of whom are apparently supporting the case of the plaintiffs, in my opinion, the other set of defendants deserve to be granted an opportunity to cross-examine the witness, namely, D. W. 17-Om Parkash. Ordered accordingly.
The petition stands disposed of.
( Rajesh Bindal ) Judge 19.3.2012 mk