Punjab-Haryana High Court
Harpreet Singh vs Jaswinder Singh And Others on 5 July, 2024
Author: Vikas Suri
Bench: Vikas Suri
Neutral Citation No:=2024:PHHC:083607
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
111 CR-3639-2024 (O&M)
Date of decision: 05.07.2024
Harpreet Singh
...Petitioner
Versus
Jaswinder Singh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS SURI
Present: Mr. J.S. Grewal, Advocate for the petitioner.
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VIKAS SURI, J.
1. This revision petition under Article 227 of the Constitution of India has been filed for setting aside order dated 08.05.2024 (Annexure P-7) whereby the application filed by the defendant-petitioner for recalling of order dated 04.04.2024 (Annexure P-4) has been declined by learned Addl. Civil Judge (Sr. Divn.), Fatehgarh Sahib.
2. Brief facts of the case are that the respondent-plaintiff has filed a suit for possession by way of specific performance of the agreement to sell dated 05.06.2015 against the petitioner-defendant, his brother and the bank. In the said case, the petitioner had examined himself as DW-4 and vide order dated 07.02.2024, as counsel for the plaintiff-respondent failed to cross examine him, the opportunity to cross examine DW-4 was treated as nil. Respondent-plaintiff challenged the said order by way of CR-1758-2024, which was disposed of vide order 1 of 6 ::: Downloaded on - 22-07-2024 03:56:42 ::: Neutral Citation No:=2024:PHHC:083607 CR-3639-2024 -2- dated 19.03.2024 (Annexure P-3) passed by this Court, whereby one effective opportunity was afforded to the plaintiff-respondent to cross examine DW-4 subject to payment of costs to the petitioner and other defendants. Before the trial Court, the plaintiff-respondent moved an application for preponing the case from 16.04.2024, which was allowed without issuing notice. The hearing of the case was advanced to 03.04.2024 for cross-examination of the petitioner. On the said date, counsel for the defendants requested for an adjournment and the matter was kept for the following day. On 04.04.2024, it was recorded by the trial Court that the petitioner DW-4 - Harpreet Singh has not come present for his cross-examination and the plaintiff has also not paid the costs to the defendants. The trial Court took up the matter three times on the said date and in the zimni order purported to be recorded at 4:30 PM, it was recorded that the petitioner has not come present for his cross- examination and the plaintiff along with his counsel is still present since morning. It was further recorded that the act of the petitioner in not having come present for his cross-examination is taken on record and the case was adjourned for rebuttal evidence of the plaintiff, if any and for arguments. The defendant-petitioner filed an application (Annexure P-5) for recalling of order dated 04.04.2024, which was supported by affidavit of the petitioner dated 16.04.2024 (Annexure P-8). The petitioner contested the finding recorded in the order dated 04.04.2024 and categorically averred in para 7 of the application/affidavit that the plaintiff had not come present on 04.04.2024 as he was admitted in 2 of 6 ::: Downloaded on - 22-07-2024 03:56:43 ::: Neutral Citation No:=2024:PHHC:083607 CR-3639-2024 -3- hospital and was under treatment. It was also asserted that the petitioner had attended the hearing on the aforesaid date. The respondent-plaintiff filed reply thereto and in his reply to para 7 of the application/affidavit, did not specifically deny the averments that the plaintiff had not come present on 04.04.2024 before the trial Court or that he was not hospitalized on the said date or was not under treatment and that the presence of the plaintiff was recorded in the case due to inadvertence. Taking note of the observations recorded in the order dated 04.04.2024, the application seeking recalling of the said order was declined vide order dated 08.05.2024.
3. Feeling aggrieved by the aforesaid order, the petitioner has invoked jurisdiction of this Court by way of the instant revision petition.
4. Heard learned counsel for the petitioner and with his able assistance, perused the record.
5. Learned counsel for the petitioner has contended that recording of the presence of the plaintiff in the order dated 04.04.2024 is on account of inadvertence. It is further submitted that in fact counsel for the plaintiff had signed on the order sheet to mark the presence of the plaintiff, which is not permissible in law. It is further submitted that the plaintiff-respondent has not categorically denied the averments made in para 7 of the application/affidavit seeking recalling of the order dated 04.04.2024 and by referring to the observations recorded in the said order, recalling of which was sought, the application has been declined, which has caused prejudice to the petitioner and also resulted in 3 of 6 ::: Downloaded on - 22-07-2024 03:56:43 ::: Neutral Citation No:=2024:PHHC:083607 CR-3639-2024 -4- miscarriage of justice. It is contended that averments on affidavit could only have been countered by an affidavit and not by oral submissions. Learned counsel prays for one effective opportunity being granted for his cross-examination, ordered vide ex parte order dated 19.03.2024 (Annexure P-3) passed by this Court in CR-1758-2024 at the instance of the respondent-plaintiff.
6. In the present case, it is not disputed that vide order dated 07.02.2024, the opportunity to cross examine the petitioner/ DW-4 - Harpreet Singh was treated as NIL. The said order was challenged by way of CR-1758-2024 and vide order dated 19.03.2024 (Annexure P-3), this Court was pleased to grant one effective opportunity to the respondent-plaintiff to cross examine DW-4 - Harpreet Singh subject to payment of costs. The said examination was to be conducted within a period of 15 days and it was further recorded in the said order that as the same was being passed without issuing notice to the defendants, liberty was granted to seek its recall. On the date of passing of the aforesaid order by this Court, the matter before the trial Court already stood adjourned to 16.04.2024. The respondent-plaintiff moved an application to prepone the case while placing on record a copy of the above noticed order dated 19.03.2024. The said application was allowed and the hearing of the case was preponed from 16.04.2024 to 03.04.2024, for cross-examination of DW-4 - Harpreet Singh. It was further ordered that the parties be informed accordingly. There is no material placed on record to show that the aforesaid order was communicated to the parties.
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7. On 03.04.2024, counsel for defendant Nos.1 and 2 requested for an adjournment which was accepted and the matter was kept for the following day i.e. 04.04.2024, on which date, three separate zimni orders were recorded, the recalling of which has been declined by the impugned order dated 08.05.2024.
8. In the facts and circumstances of the present case and considering the contentions noticed hereinabove as well as the factum on record that the impugned order dated 08.05.2024 does not deal with the specific plea raised by the defendant-petitioner in para 7 of the application/affidavit discussed above, the impugned order deserves to be set aside. The consequences of sustaining the order dated 04.04.2024 are far reaching. The trial Court was under a solemn duty to decide all the contentions raised and urged before it. The petitioner has reiterated his categoric stand that neither any material nor the plaintiff has filed his affidavit to contest the unequivocal averments made in para 7 of the application/affidavit.
9. In the light of the above discussion, the present revision petition is liable to be allowed. However, keeping in view that remanding back the matter to the trial Court for decision afresh would further delay the matter and in the peculiar facts and circumstances of this case, taking note of the uncontested position noticed hereinabove, the instant petition is disposed of by setting aside the impugned order dated 08.05.2024; the trial Court is requested to provide one effective opportunity to the petitioner/ DW-4 - Harpreet Singh to present himself 5 of 6 ::: Downloaded on - 22-07-2024 03:56:43 ::: Neutral Citation No:=2024:PHHC:083607 CR-3639-2024 -6- for his cross-examination on the date already fixed before the trial Court, in terms of the order dated 19.03.2024 passed by this Court. It is, however, clarified that the period of 15 days specified in the order dated 19.03.2024, passed in CR-1758-2024, will not come in the way of the trial Court to grant one effective opportunity, which period shall now be counted from today. This shall be the last opportunity for the aforesaid purpose, subject to payment of Rs.5000/- to be paid to the plaintiff- respondent.
10. This order has been passed without issuing notice to the respondents and as such, they would be at liberty to file an application seeking its recall.
11. The revision petition is disposed of in the aforesaid terms.
12. Pending applications, if any, also stand disposed of.
(VIKAS SURI)
July 05, 2024 JUDGE
sumit.k
Whether speaking/reasoned : Yes / No
Whether Reportable : Yes / No
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