Punjab-Haryana High Court
Harish Chand Gera vs Pooja Devi And Another on 18 March, 2010
Author: Ajay Tewari
Bench: Ajay Tewari
CR No.5867 of 2009 (O & M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.5867 of 2009 (O & M)
Date of decision: 18.03.2010
Harish Chand Gera
.. Petitioner
Versus
Pooja Devi and another
.. Respondents
CORAM: HON'BLE MR.JUSTICE AJAY TEWARI
a). Whether Reporters of Local Papers may be allowed to see the judgment ?
b). To be referred to the Reporters or not ?
c). Whether the judgment should be reported in the Digest ?
Present:- Mr.N.S.Shekhawat, Advocate
for the petitioner
Mr.Mukesh Kumar Verma, Advocate
for the respondent No.1
. . .
AJAY TEWARI, J. (ORAL)
This petition has been filed against the order closing the evidence of the plaintiff. In an interesting turn of events the order of closing the evidence of the plaintiff-respondent No.1 has not been challenged by the plaintiff-respondent No.1 but by the petitioner-defendant No.1. The respondent No.1-plaintiff had filed the suit for recovery on the ground that she had advanced a loan to the petitioner-defendant No.1. The petitioner-defendant No.1 had taken the plea that the money had been returned to the person from whom it was borrowed and that there was no privity of contract between the petitioner-defendant No.1 and respondent No.1-plaintiff and further that some signed papers of the petitioner- defendant No.1 were being misused by the respondent No.1-plaintiff. PW- 3 the father of the respondent No.1-plaintiff had appeared in evidence and was sought to be confronted with the document wherein he had asserted that in fact, the loan amount had been paid by him and the matter was CR No.5867 of 2009 (O & M) ::2::
adjourned to enable the petitioner-defendant No.1 to produce that original document to confront PW-3. It was, at this stage that the respondent absented and consequently, the order for closing the evidence of respondent No.1-plaintiff was passed.
Learned counsel for the petitioner-defendant No.1 has argued that once the Court had permitted the petitioner-defendant No.1 to confront PW-3 with that document, it could not have closed the evidence of the respondent No.1-plaintiff without ensuring that the said PW was actually confronted with the document. As per the learned counsel, the reason why respondent-plaintiffs absented was because on confrontation of PW-3 her whole case would have been displaced.
Learned counsel for the respondent No.1-plaintiff has further argued that after the closure of the evidence of the plaintiff- respondent No.1, the petitioner-defendant No.1 had also moved an application for recalling PW-3 but the said application was rejected. In his submission, the non-challenge of the petitioner-defendant to that order was constituted res judicata. It is, however, not disputed that the second order (rejecting the application of the petitioner for recalling PW-3) was passed after this petition was filed.
Consequently, it cannot be said that by not challenging that order, the petition is barred by the res judicata.
In my opinion, really the learned Trial Court should have even allowed the the application for recalling the said witness but that need not detain this Court further, since, as mentioned above, the previous order had been challenged by the defendant-petitioner (closing the evidence of the respondent-plaintiffs) in this petition.
In my considered opinion, it would be in the interest of justice if the PW-3 is confronted with the document allegedly attributed to him. Consequently, this petition is allowed and it is directed that PW-3 CR No.5867 of 2009 (O & M) ::3::
should submit himself for further cross-examination. Learned counsel for the respondent No.1-plaintiff has informed that the matter is now adjourned for 21.04.2010. It would be in the interest of the respondent No.1-plaintiff to ensure that the said PW-3 appears in Court, so that his cross- examination can be completed and till such time that is done, the Trial Court shall not proceed further with the trial of the case.
In these terms, this petition stands allowed.
March 18, 2010 (AJAY TEWARI) Sukhpreet JUDGE