Punjab-Haryana High Court
Salochna Devi vs Pawan Kumar Chaudhary on 10 December, 2024
Neutral Citation No:=2024:PHHC:164686
289 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR-3972-2019
Date of Decision: December 10, 2024
Salochana Devi ... Pe//oner
Versus
Pawan Kumar Chaudhary ...Respondent
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Saurav Gautam, Advocate for the pe oner.
DEEPAK GUPTA, J.(Oral)
By way of this revision filed under Ar cle 227 of the Cons tu on of India, pe oner assails the order dated 17.05.2019 (Annexure P-2), whereby the trial Court has allowed cross-examina on of PW4 - plain ff- Pawan Kumar Chaudhary (respondent herein), though the evidence of the plain ff was closed on 10.08.2018.
2. A perusal of the paper book would reveal that based upon an agreement to sell dated 27.03.2015, plain ff - Pawan Kumar Chaudhary (respondent herein) filed a suit for possession by way of specific performance against defendant - Salochana Devi (pe oner herein). During proceedings, plain ff - Pawan Kumar Chaudhary tendered into evidence his affidavit Ex.PW4/A alongwith documents Exs.P-1 to P-5 (as examina on-in-chief) on 25.05.2018. On the same day, affidavit was also tendered by PW5 - Deepak Chaudhary. Copies were supplied to the opposite counsel and the Court adjourned the ma=er to 04.07.2018. On the adjourned date, no PW was present and the ma=er was adjourned to 16.07.2018. On 16.07.2018, statement of PW5 - Deepak Chaudhary was completely recorded. Though, PW4 - Pawan Kumar Chaudhary, i.e. plain ff was present, but his statement was not recorded as the Court me was over, so the case was adjourned to 1 of 4 ::: Downloaded on - 11-12-2024 07:26:11 ::: Neutral Citation No:=2024:PHHC:164686 CR-3972-2019 2024:PHHC: 164686 19.07.2018. On the adjourned date on 19.07.2018, PW4 - Pawan Kumar Chaudhary did not appear and it was informed to the Court by his counsel at bar that plain ff was not well and so ma=er was adjourned to 03.08.2018. On 03.08.2018, no PW was present and ma=er was adjourned to 10.08.2018. Again, plain ff did not appear on 10.08.2018 and so his evidence was closed.
3. It is revealed further that case proceeded for evidence of the defendant. Plain ff then moved an applica on (Annexure P-3) under Sec on 151 CPC to lead evidence and to present himself for cross-examina on, by recalling the order dated 10.08.2018. It was submi=ed by him that in the month of July, 2018 and August, 2018, he was suffering from numerous ailments and was under constant treatment. His wife had also fallen sick and remained bed ridden for long me. Though, said applica on was opposed by the defendant-pe oner, but the trial Court by way of impugned order dated 17.05.2019, allowed the applica on subject to cost of `1,000/-.
4. Assailing the order, it is contended by learned counsel for the pe oner that once the defendant had almost produced his en re evidence, allowing the plain ff to appear for cross-examina on tantamounts to rebu=al evidence, which is not permissible and therefore, impugned order is not sustainable.
5. On the other hand, counsel for the respondent defends the impugned order, submiBng that sufficient grounds were given by the respondent-plain ff for his non-appearance earlier and that Court has a discre on to recall any witness at any me.
6. I have considered submission of both the sides and have appraised the record.
7. As has been held by Hon'ble Supreme Curt in "K.K. Vlusamy v. N. Palanisamy", 2011 AIR SC (Civil) 1000 that the Court can permit fresh evidence, if the same was relevant to render jus ce and its non-produc on earlier was for valid reasons. Hon'ble Supreme Court also held that Court should award appropriate costs to the other party to compensate for the Page 2 of 4 2 of 4 ::: Downloaded on - 11-12-2024 07:26:12 ::: Neutral Citation No:=2024:PHHC:164686 CR-3972-2019 2024:PHHC: 164686 delay. However, if applica on is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.
8. In the present case as no ced earlier, plain ff had appeared and had tendered his evidence by way of affidavit on 27.05.2018. The Court adjourned the ma=er for his cross-examina on. He was also present on 16.07.2018, but as the Court me was over, so the ma=er was adjourned. On the next date of hearing, the Court was informed about the sickness of the plain ff by his counsel and the ma=er was adjourned. As plain ff did not appear even on the next date of hearing, so it was in these circumstances that his evidence was closed. So it is not the case that plain ff had not inten onally appeared earlier or that applica on has been moved with a mischievous purpose or to cover up the negligence or lacunae.
9. As held by Hon'ble Supreme Court in K.K. Velusamy's case (supra), though there is no provision providing for reopening of the evidence or recalling of any witness for further examina on or cross-examina on, but in the absence of any such power, the inherent power under Sec on 151 CPC can be invoked by the Court in appropriate cases to reopen the evidence and/or recall the witnesses for further examina on. This inherent power of the Court is not affected by the express power conferred upon the Court under Order 18 Rule 17 CPC to recall any witness to enable the Court to put such ques on to elicit any clarifica on.
10. Apart from above, learned trial Court in the impugned order has also observed that the plain ff had fallen sick and was bed ridden. Even his wife was bed ridden.
11. In the aforesaid facts and circumstances, this Court does not find any illegality or perversity in the impugned order dated 17.05.2019, whereby the trial Court has permi=ed the plain ff to appear for his cross-examina on, par cularly when the opposite party, i.e. pe oner-defendant has been allowed costs.
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12. Finding no merit in the present revision pe on, the same is hereby dismissed.
December 10, 2024 (DEEPAK GUPTA)
sarita JUDGE
Whether speaking/reasoned? Yes
Whether reportable? No
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