High Court Punjab-Haryana High Court

Present: Mr. Karanjit Singh vs Mr. Premjit Kalia on 20 January, 2009

Punjab-Haryana High Court
Present: Mr. Karanjit Singh vs Mr. Premjit Kalia on 20 January, 2009
Civil Revision No. 942 of 2008                         -1-

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      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH


                        Civil Revision No. 942 of 2008
                        Date of decision: 20.01.2009.


Ram Murti                                              ...Petiitioner
                                 Versus

Rup Lal and others                                 ...Respondents


CORAM: HON'BLE MR. JUSTICE S.D.ANAND.


Present:    Mr. Karanjit Singh, Advocate, for the petitioner.

            Mr. Premjit Kalia, Advocate for the respondents.

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S.D.ANAND, J.

The plaintiff-petitioner has filed the present petition in order

obtain the invalidation of the order dated 2.1.2008 (Annexure P-1), vide

which the plea for additional evidence came to be allowed in favour of the

defendants-respondents.

The controversy at the trial revolves around the validity of the

sale deed dated 5.4.1968. Sardari Lal is an attesting witness thereof. His

examination-in-chief was recorded by the learned Trial Court and the

matter was adjourned for cross-examination. However, he was given up

on the adjourned date as having been won over by the plaintiff-petitioner.

Through the impugned application for additional evidence, defendants-

respondents applied for the leave of the Court to produce Sardari Lal

aforementioned. The plea, raised in support thereof, was that Sardari Lal

could not be produced earlier as his whereabouts were not traceable and
Civil Revision No. 942 of 2008 -2-

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that his present whereabouts have been presently ascertained. Further

plea of the defendants-respondents is that, in the absence of cross-

examination, it would not be possible for the Court to consider the

statement (examination-in-chief) made by that witness. Learned Trial

Judge allowed their application by noticing that it would not otherwise be

possible to take into consideration partly recorded statement of Sardari Lal.

For holding that view, the learned Trial Judge also drew sustenance from

the fact that defendants-respondents had themselves closed their evidence

earlier and it was not a case where the evidence had been closed under

the orders of the Court.

The impugned order deserves to be outrightly invalidated. It is

apparent from the record that Sardari Lal DW, whose examination-in-chief

had been recorded earlier, was given up by defendants-respondents on the

plea that he had been won over by the plaintiff-petitioner. At that point of

time, there was no averment on behalf of the defendants-respondents that

the whereabouts of Sardari Lal DW were not traceable. It is one thing to

dub the witness as having been won over by the opposite party and quite

another thing to aver that his whereabouts are not traceable. Once Sardari

Lal had been given up on the above indicated premise, defendants-

respondents cannot be heard to make a grievance that his recall (by

means of additional evidence) should be allowed because the Court would

not otherwise be in a position to consider his testimony on the basis of

examination-in-chief. The witness having been given up, there is, no

occasion for the trial Court to consider his examination-in-chief at all.

Further the fact that the defendants-respondents had

themselves closed the evidence is not a good ground for allowing the

application for additional evidence. It is neither here nor there for the
Civil Revision No. 942 of 2008 -3-

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learned Trial Court to have allowed the application on the premise that it is

not a case where the evidence had been closed under the orders of the

Court. In either eventuality, the impugned order could not have been

granted because that witness had already been given up by the

defendants-respondents themselves. The variation of the stances adopted

by defendants-respondents is apparent enough in the circumstances of

the case and plainly indefensible.

In the light of the fore-going discussion, I have no hesitation in

allowing the petition. The impugned order dated 2.1.2008 (Annexure P-1)

shall stand quashed. The learned Trial Court shall proceed further in the

matter in accordance with law.

January 20, 2009                                  (S.D.Anand)
Pka                                                  Judge