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2002 DIGILAW 371 (PNJ)

Ved Parkash Gupta v. Lilu Ram Jangra

2002-04-04

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 2.3.2002 passed by the Civil Judge (Junior Division) Hisar dismissing the application of the defendant-petitioner for recalling Devi Lal PW 1, Clerk, who was examined to prove the general power of attorney. The Civil Judge has also imposed costs of Rs. 300/- while dismissing the application. 2. Brief facts of the case are that the plaintiff-respondent filed a civil suit No. 572 of 1997 on 25.10.1997 for declaration to the effect that he is transferee/allottee of plot No. 1207 Sector 14, (Part), Hisar. He further asserted that he is entitled to get his name entered in the official record of Haryana Urban Development Authority (for brevity the HUDA). It was further claimed that he was entitled to make formal transfer as he had purchased the plot in the question from the defendant-petitioner through general power of attorney executed in favour of Uggar Sain. In the written statement filed by the defendant-petitioner, the stand taken is that he never executed the general power of attorney dated 14.11.1990 nor it was signed by the defendant-petitioner. It was also denied that he ever appeared before the Registrar for the registration of the general power of attorney relied upon by the plaintiff-respondent. He allegated that the so called power of attorney is fabricated and forged document. After the evidence of the parties had been concluded and the case was fixed for rebuttal evidence and arguments, an application for recalling Devi Lal PW was made which was dismissed and the order dismissing the same is the subject matter of challenge in this revision petition, which is as under : "The applicant has levelled serious allegations in the application that Court did not grant any opportunity to the applicant to cross examine the witness. The persual of record of the case file reveal that the allegations of the applicant are absolutely false, malafide and useless. Only to delay the proceedings of the case, it appears, that the applicant has filed this false application. A perusal of order sheet reveals that witnesses were recorded on 6.1.1999. The presence of the counsel is well marked by the court on that date. It is the case of the applicant that Sh. C.P. Leekha was his counsel on that date. A perusal of order sheet reveals that witnesses were recorded on 6.1.1999. The presence of the counsel is well marked by the court on that date. It is the case of the applicant that Sh. C.P. Leekha was his counsel on that date. The record reveals that PW 1 Devi Lal and Ram Bhagat were examined on that date. Both the witnesses were cross examined on that date. In the cross examination of PW1 Devi Lal the name of Shri C.P. Leekha is missing but it is well mentioned in the cross examination of PW 2 Ram Bhagat. But missing the name of Shri C.P. Leekha in the Statement of PW 1 appears to be a clerical mistake. It is not possible that if the two witnesses are examined on one date out of them one may be cross examined and other may not be cross examined. Therefore, it is clear that the counsel for the applicant was well present in the court as he cross examined PW 2 Ram Bhagat and the presence of the counsel has been marked in the order sheet. It is not the case of the applicant that on that date his counsel cross examined only one witness and he forgot to examine the other witness or the court did not allow him to examine the other witness. The case of the applicant is only that the PW 1 Devi Lal, Clerk was not examined in the presence of his counsel. As the presence of counsel is well established from the record therefore, it appears that the applicant has given a totally false version. Had his counsel (been) not present in the Court on that date then he must have been proceeded ex-parte by the court. If the name of the counsel of the applicant could not be written in the cross examination that does not mean that his counsel was not present in the court as his name is well mentioned in the cross examination of other witness and in the order sheet, presence of the counsel is also marked. The applicant is habitual of filing such type of applications only to delay the proceeding of the case. The conduct of the applicant is very much clear from the record. Previously also the applicant has filed such type of false application. The applicant is habitual of filing such type of applications only to delay the proceeding of the case. The conduct of the applicant is very much clear from the record. Previously also the applicant has filed such type of false application. The sufficient opportunities were given to the defendant to conclude his evidence but he failed to conclude his evidence. Therefore, the evidence of the defendant No. 2 was closed on 10.5.2000 by the then ld. Civil Judge (Jr. Divn.) Hisar vide detailed order dated 10.5.2002. The case was fixed for rebuttal evidence and arguments. But with an intention to delay the proceeding the applicant filed an application for amendment of written statement. Anyhow in the interest of justice the application was allowed by the court subject to payment of cost Rs. 1000/-. After that the applicant/defendant got examined three witnesses namely Ved Parkash, Ram Bhagat and Puran Singh Dabra, the case was again fixed for rebuttal evidence and arguments. At this stage the applicant again filed this false application only to delay the proceeding of the case. The intentions of the applicant are clearly established as no affidavit has been filed with the application. It will always be presumed that while recording the evidence, Presiding Officer will always gave an opportunity to cross examine the witness. If any party alleges that no opportunity was given then allegation must be supported with very strong reasons and with strong evidence if possible. The authority of a Presiding Officer cannot be put at stake by writing two line in the application that no opportunity to cross examine the witness was given and that application is not supported even by affidavit. Otherwise also marking the documents as exhibit can be well agitated by the applicant at the time of argument. The witness need not be recalled only on the ground that some documents have been tendered by the witness and the other party wants to raise the objection on the documents. If such practice is allowed by the court there will be no end of the litigation and such type of applications can be filed again and again. Resultantly, the application is liable to be dismissed with costs." 3. If such practice is allowed by the court there will be no end of the litigation and such type of applications can be filed again and again. Resultantly, the application is liable to be dismissed with costs." 3. I have heard Shri Vinod Gupta, Advocate, learned counsel for the defendant-petitioner who has assailed the order dated 2.3.2002 by arguing that a Clerk from the office of HUDA is not a competent witness to prove the general power of attorney in favour of one party or the other. Therefore, it is necessary to recall the Clerk Devi Lal for further cross-examination. He has further submitted that the observation of the Civil Judge that the application has been filed in order to delay the proceedings are unwarranted. Another argument advanced by the learned counsel is that the interlocutory order quoted by the Civil Judge shows that the counsel for the defendant- petitioner Shri C.P. Leekha was not present when PW 1 Devi Lal was examined. Substantiating his argument, he has pointed out that name of Shri C.P. Leekha, counsel who had represented the defendant-petitioner has been mentioned in the cross-examination of PW 2 Shri Ram Bhagat, although Devi Lal and Ram Bhagat PW 1 and PW 2 respectively were examined on the same day. 4. Having considered the argument of the learned counsel for the petitioner and perusing the order, I am of the considered opinion that the defendant- petitioner cannot be permitted to recall PW 1 Devi Lal because there was ample opportunity with the defendant-petitioner to cross examine Devi Lal PW 1. It is not believable that defendant-petitioner or his counsel was not present when PW 1 Devi Lal was examined-in-chief yet he was present at the time PW 2 Ram Bhagat was examined-in-chief who admittedly has been cross examined by Shri C.P. Leekha on the same day. The argument of the learned counsel that PW 1 Devi Lal is not competent witness to prove the general power of attorney executed in favour of one Uggar Sain cannot be examined at this stage because such an argument is to be considered at the time of decision of the suit. It is sad to note that the defendant-petitioner has the audacity of levelling allegation against the Court for not providing adequate opportunity for cross-examination of PW 1 Devi Lal. Such a conduct could not meet the approval of any judicial forum. It is sad to note that the defendant-petitioner has the audacity of levelling allegation against the Court for not providing adequate opportunity for cross-examination of PW 1 Devi Lal. Such a conduct could not meet the approval of any judicial forum. The Civil Judge has also concluded that on an earlier occasion when the case was fixed for rebuttal of evidence and arguments, then an application for amendment of the written statement was filed by the defendant-petitioner which was allowed subject to payment of Rs. 1,000/- as costs. After examining three witnesses the case was again fixed for rebuttal evidence and arguments. This application has again been filed to delay the proceedings. The conclusion reached by the Civil Judge and his observation that the application has been filed to delay the proceedings are not at all unwarranted. Infact the observations are fully supported by the past conduct of the defendant-petitioner. Therefore, this revision petition is liable to be dismissed with costs. 5. For the reasons recorded above, this revision petition fails and is dismissed with costs of Rs. 2,000/-. Cost be deposited to the Haryana Legal Aid Services Authority, Chandigarh by 20.5.2002. A copy of this order be sent to the office of Secretary of Haryana Legal Aid Services Authority, Chandigarh who shall inform this Court as to whether the cost has been deposited or not. Revision dismissed.