IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 6643 of 2008
Date of Decision : December 10, 2008
Archaeological Survey of India and another
....Petitioners
Versus
M.G.F. Company and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Anil Rathee, Central Government Standing Counsel
for the petitioners.
Mr.Sanjay Kaushal, Advocate
for respondents No. 1 and 2.
Mr. Pankaj Gupta, Advocate
for respondent No. 3.
T.P.S. MANN, J.
Challenge in the revision is to the order passed by the trial
Court on November 14, 2008 whereby evidence of the plaintiffs-
petitioners was closed by order. While passing the impugned order,
learned trial Court observed that as required by order dated 30.5.2008 of
the High Court, three effective opportunities had already been given to
the plaintiffs to conclude their evidence, which they had availed and,
therefore, no case was made out for further adjourning the case for their
evidence.
The petitioners had earlier filed a revision petition in this
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regard wherein they had challenged the orders passed by the trial Court
and the appellate Court under Order XXXIX Rules 1 and 2 C.P.C.
declining to stay the construction of the shopping mall-cum-multiplex-
cum-hotel building. The said revision was allowed on 30.5.2008 and
respondents No. 1 and 2 were restrained from raising any construction
on the site in question during the pendency of the suit. However, while
taking into consideration that respondents No. 1 and 2 had already spent a
large sum of money, this Court also directed the trial Court to decide the
suit positively within a period of six months from the next date of hearing
by granting three effective opportunities to each party to lead its evidence
and the parties were also directed not to delay the disposal of the suit.
The concluding portion of the order dated 30.5.2008 is reproduced here-
in-below:-
“In view of what has been held herein above, the
revision petition is allowed and the orders, dated
17.9.2007 and 20.12.2007 are set aside.
Respondents No. 1 and 2 are restrained from raising
any construction on the disputed site, during the
pendency of the suit. However, taking into
consideration that respondents No. 1 and 2 have
spent a large sum of money the trial Court is
directed to positively decide the suit, within a
period of six months from the next date of hearing,
by granting three effective opportunities to each
party to lead evidence. The parties are directed not
to delay the disposal of suit. No order as to costs”
Civil Revision No. 6643 of 2008 -3-
After the framing of the issues on 29.9.2008, trial Court
ordered for summoning evidence of the plaintiffs for 17.10.2008.
However, the matter was taken up by the Court on 16.10.2008 as the
Presiding Officer was to proceed on leave on 17.10.2008 and the case
was adjourned to 20.10.2008 for evidence of the plaintiffs. However, on
20.10.2008, no PW was present and on request made by learned counsel
for the plaintiffs, the case was adjourned to 30.10.2008. On the said date,
PW1 was examined-in-chief. However, his cross-examination was
deferred to 14.11.2008 on request made by learned counsel for the
defendants, who needed more time to peruse the affidavit of PW1, which
ran into 30 pages and was tendered in evidence in lieu of examination-in-
chief. On 14.11.2008, PW1 was cross-examined. No other witness of the
plaintiffs was present. The trial Court then proceeded to close the
evidence of the plaintiffs by order, instead of granting further
adjournment to them for their remaining evidence.
As is clear from above, three effective opportunities have not
been availed of by the plaintiffs for examining their entire evidence. The
first opportunity was to be availed by them on 17.10.2008, but as the
learned trial Judge was to proceed on leave on the said date, the case was
taken up a day earlier and adjourned to 20.10.2008. The stand of the
plaintiffs is that the summons had already been issued by the trial Court
for service of its witnesses for 17.10.2008 and as the case was adjourned
a day before the said date for 20.10.2008, there was no chance of
summoning the witnesses once again for 20.10.2008 after getting the
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process issued for their service. It was for that reason that no PW was
present before the trial Court on 20.10.2008. Under these circumstances,
it cannot be said that the plaintiffs availed first effective opportunity for
examining their witnesses on 20.10.2008. Even on the adjourned date, i.e.
30.10.2008, Jasmer Singh was produced by the plaintiffs as PW1 and by
way of his examination-in-chief, his affidavit was tendered. It was on a
request made by learned counsel for the defendants that his cross-
examination was deferred to 14.11.2008.
In view of the above, it has to be held that so far the plaintiffs
have not been able to avail of three effective opportunities for examining
their entire evidence. Resultantly, this Court has no other option but to
accept the present revision and while setting aside the impugned order
closing the evidence of the plaintiffs-petitioners, granted one more
effective opportunity to them to examine their entire evidence.
The Court has been informed that after the closure of the
plaintiffs’ evidence, the defendants have already examined DW1 Rohit
Gupta as their witness on 28.11.2008. In such a situation, the plaintiffs,
who are entitled to one more effective opportunity for examining their
remaining evidence can be restrained from demolishing the evidence of
said Rohit Gupta DW1 by bringing any such evidence.
The revision is, therefore, accepted, impugned order is set
aside and the plaintiffs-petitioners are granted one last effective
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opportunity to examine their remaining evidence. As the case is now
fixed before the trial Court for recording of further evidence of the
defendants for 13.12.2008, the last opportunity granted to the plaintiffs
for examining their remaining evidence be availed of by them within a
week from the said date. It is also made clear that while examining their
remaining evidence, the plaintiffs shall not make any effort to demolish
the evidence of DW1 Rohit Gupta. In case, the plaintiffs require any
assistance in summoning their witnesses, learned trial Court shall not
hesitate in taking necessary steps in that directions, besides taking
coercive measures for securing the presence of the witnesses of the
plaintiffs. Once the witnesses of the plaintiffs appear before the learned
trial Court, they be examined by the plaintiffs and cross-examined by the
defendants on day to day basis, if need be.
( T.P.S. MANN )
December 10, 2008 JUDGE
satish
Whether to be referred to the Reporters : YES / NO