Punjab-Haryana High Court
Dhl Express (India) Pvt.Ltd vs The Saraswati Industrial Syndicate on 2 September, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.5306 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.5306 of 2011
Date of Decision:02.09.2011
DHL Express (India) Pvt.Ltd. ......Petitioner
Versus
The Saraswati Industrial Syndicate
Limited and others ......Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Sanjay Judge, Advocate,
for the petitioner.
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MEHINDER SINGH SULLAR, J.(oral) Concisely, the facts, culminating in the commencement, relevant for disposal of the present revision petition and emanating from the record are that, The Saraswati Industrial Syndicate Limited, Proprietor of M/s ISGEC, Yamuna Nagar and Chief Manager, State Bank of Patiala-respondent Nos.1 and 2-plaintiffs (for brevity "the plaintiffs") filed the suit for recovery of `11,45,335/- against DHL Express(India) Pvt.Ltd.-petitioner-defendant No.2, its Manager-defendant No.1 and the Bank of America-respondent No.4-defendant No.3(for short "the defendants").
2. Having framed the essential issues, in the wake of pleadings of the parties, ultimately, the case was fixed for evidence of the plaintiffs on 06.06.2011. On that day, two PWs, namely, Anil Duggal and Veena Malla were present, but counsel for the plaintiffs was not present for their examination. The case was ordered to be kept pending upto 08.30 A.M. by the trial Court. Again, at 8.30 A.M., counsel for the plaintiffs and defendant No.3 appeared, but counsel for defendant Nos.1 and 2 did not turn up and the case was adjourned after lunch Civil Revision No.5306 of 2011 2 break for cross-examination of the witnesses. The case was again taken-up after lunch break, but the counsel for defendant Nos.1 and 2 did not appear to cross- examine the witnesses. The evidence of two witnesses, namely, Anil Duggal and Veena Malla, was completed without their cross-examination on behalf of defendant Nos.1 and 2 and the case was adjourned for evidence of the defendants by the trial Court, by means of impugned order dated 06.06.2011, which in substance is as under:-
"Case called about 6 times at 11.30 a.m., but none appeared on behalf of defendants No.1 and 2 upto 12.00 noon. Witnesses are sitting in the court since morning, who are waiting for their cross examinations because they had already tendered their affidavits in terms of their examinations in chief. Ultimately, keeping in view of their long wait, I allow them to step into witness box for their cross examinations one by one to be conducted by the defendant who is present i.e. defendant No.3. Resultantly, both the witnesses one by one stepped into witness box upon whom cross examinations have been completed by defendant No.3. But no cross examination has been put forward upon them on behalf of defendants No.1 and 2 because none appeared on their behalf. Therefore, witnesses can not be held up further. In these circumstances, it appears to me that defendants No.1 and 2 do not want to put cross examination upon the witnesses. Resultantly, on completion of cross-examination of both the above named witnesses, they are discharged at 12.40 p.m. Thereafter, evidence of plaintiff has been closed by counsel for the plaintiff. To come up on 05.09.2011 for evidence of the defendants."
3. Aggrieved by the decision of the trial Court, the petitioner-defendant preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India.
4. At the very outset, in exercise of power under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to respondent Nos.1 and 2-plaintiffs, in order to save them from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit, particularly when they can well be compensated with adequate costs in this respect. Be that as Civil Revision No.5306 of 2011 3 it may, but still they would be at liberty to file the petition to review this order, without accepting the costs, if so desire.
5. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, the instant petition deserves to be partly accepted in this context.
6. As is evident from the record that, the main ground which appears to have been weighed with the trial Court in debarring the contesting defendant Nos.1 and 2 to cross-examine the witnesses of the plaintiffs was that, although counsel for defendant Nos.1 and 2 was present at 8.30 AM, but after lunch, he did not appear to cross-examine the witnesses.
7. It is not a matter of dispute that the plaintiffs have filed the suit for recovery against the defendants for approximately an amount of `11,45,335/-. Keeping in view the nature of litigation between the parties and the amount claimed by the plaintiffs, to me, the trial Court ought to have granted one more opportunity to defendant Nos.1 and 2, to cross-examine the indicated PWs, subject to costs. Moreover, the petitioner-defendant Nos.1 and 2 cannot possibly be penalized for the inaction or negligence of their counsel on one day i.e., 06.06.2011. If defendant Nos.1 and 2 are not permitted to cross-examine the above indicated witnesses of the plaintiffs, then their case will be greatly prejudiced and it will inculcate and perpetuate injustice to them. The cross- examination of PWs by defendant Nos.1 and 2 is essential for the fair trial of the case and in order to decide the real controversy between the parties. Moreover, no prejudice is going to be caused to respondent Nos.1 and 2-plaintiffs, particularly when they can be compensated with adequate costs in this regard.
8. In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order is hereby set aside. The trial Court is directed to provide one more opportunity to petitioner-defendant Nos.1 and 2, to Civil Revision No.5306 of 2011 4 cross-examine the indicated two witnesses. However, this would be subject to the payment of Rs.5,000/- (Rupees Five Thousand) as costs, to be paid by the petitioner-defendant Nos.1 and 2 to respondent Nos.1 and 2-plaintiffs. The payment of costs shall be a condition precedent to the further defence of the case.
September 02, 2011 (MEHINDER SINGH SULLAR) seema JUDGE