Civil Revision No. 942 of 2008 -1-
****
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.
*****
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-
****
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-
****
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