Punjab-Haryana High Court
Smt. Giano @ Gian Kaur And Another vs Smt. Veena Sharma on 10 October, 2013
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 6237 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No. 114
Case No. : C. R. No. 6237 of 2013
Date of Decision : Oct. 10, 2013
Smt. Giano @ Gian Kaur and another .... Petitioners
Vs.
Smt. Veena Sharma .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Divanshu Jain, Advocate
for the petitioners.
* * *
L. N. MITTAL, J. (Oral) :
Defendants have filed this revision petition under Article 227 of the Constitution of India impugning order dated 16.09.2013 (Annexure P-4), passed by the trial court, thereby dismissing application (Annexure P-
3) filed by the defendants for permission to handwriting and finger-print expert to take photographs of relevant documents and to compare the thumb impressions of defendant no. 1, and also closing the evidence of defendants by court order.
Respondent-plaintiff has filed suit for possession of the suit Monika 2013.10.10 15:34 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 6237 of 2013 2 property by specific performance of the agreement to sell. Defendants pleaded in their application (Annexure P-3) that they wanted to examine the expert witness regarding comparison of alleged thumb impressions of defendant no. 1 on documents Ex.P-1 and Ex.P-2 produced by the plaintiff. The trial court, while passing the impugned order dated 16.09.2013 (Annexure P-4), observed that it was offered to the defendants if they wanted to get the photographs clicked by the expert, the same could be done on that very day itself so that the report could be filed on the next date of hearing and the evidence could be concluded. However, proxy counsel for the defendants expressed inability to take photographs on the same day and submitted that the photographs would be taken on the next date of hearing and further submitted that only thereafter, the report would be submitted. In these circumstances, the trial court has dismissed application (Annexure P-
3) filed by the defendants and has closed the evidence of defendants by court order.
I have heard counsel for the petitioners and perused the case file.
Counsel for the petitioners contended that photographs by the expert could not be taken on the same day i.e. on 16.09.2013 because the expert had not been called to the Court on that day as there was no prior permission for taking of photographs. It was prayed that only one more Monika opportunity may be granted for taking of photographs and thereafter, one 2013.10.10 15:34 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 6237 of 2013 3 opportunity for examination of the expert as witness.
I have carefully considered the matter. Even if the expert was not available on 16.09.2013 to take the photographs, submission to this effect could be made before the trial court, but was not made. Moreover, even in that event, the photographs could be taken in between before the next date of hearing, so that on the next date of hearing, the expert could be examined and the evidence could be concluded.
As per zimni orders of the trial court, only three opportunities were granted to the defendants for their evidence. On the first date of hearing i.e. on 22.07.2013, defendant no. 1 appeared in the witness-box and tendered her affidavit. Case was adjourned to 19.08.2013 for evidence of the defendants. On 19.08.2013, DW-1 Gian Kaur (defendant no. 1) was present and was partly examined. Her cross-examination was deferred on the request of defendants' counsel. Case was adjourned to 16.09.2013 for cross-examination of defendant no. 1 Gian Kaur and also for remaining evidence of defendants. On 16.09.2013, cross-examination of DW-1 was recorded and thereafter, impugned order was passed.
Plaintiff was granted large number of opportunities for her evidence, as revealed by zimni orders of the trial court, reproduced in the revision petition, whereas only three opportunities were granted to the defendants for their evidence. Moreover, the trial court was also ready to Monika grant another adjournment for examination of the expert witness by the 2013.10.10 15:34 I attest to the accuracy and integrity of this document High Court Chandigarh C. R. No. 6237 of 2013 4 defendants. However, the problem arose because the expert was not available to take the photographs of the documents on the date of impugned order. The trial court could also have adjourned the case to the next date of hearing for examination of the expert witness with permission to the defendants to get the photographs taken on some intermediate date.
In the aforesaid circumstances, I am of the considered opinion that prayer of the defendants should be allowed on payment of costs.
I intend to dispose of the instant revision petition without issuing notice to respondent-plaintiff so as to avoid further delay in disposal of the suit and also to save the respondent-plaintiff of the financial burden she may have to bear in engaging counsel for the revision petition, if notice of the same is issued to her.
Accordingly, the instant revision petition is allowed. Trial court is directed to grant only one more effective opportunity to the defendants for examination of handwriting and finger print expert, at own responsibility, subject to payment of Rs.3,000/- as costs precedent and before the date of hearing for evidence of the defendants, they should also be permitted to get the photographs of relevant documents taken by the expert on some intermediate date.
Oct. 10, 2013 ( L. N. MITTAL )
monika JUDGE
Monika
2013.10.10 15:34
I attest to the accuracy and
integrity of this document
High Court Chandigarh