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2009 DIGILAW 406 (JK)

Tilak Raj v. Romesh Chander

2009-08-21

J.P.SINGH

body2009
1. Aggrieved by November 14, 2008 order of Munsiff, Hiranagar closing defendants right to cross-examine the plaintiff-respondent, for non-availability of their learned counsel on seven occasions, the petitioners have filed this Revision Petition questioning the order and seeking its setting aside, urging that the order impugned in the petition has deprived them of their right to cross-examine the plaintiff. According to their learned counsel, notwithstanding the non-availability of their counsel, they could not have been denied opportunity by the trial Court to cross-examine the plaintiff themselves, unless provided opportunity therefor. An application seeking condonation of delay in fling the Revision Petition too has been moved. 2. While not opposing the petitioners prayer for condonation of delay in filing the revision petition, respondents learned counsel, Mr. Mansotra, submitted that the trial Court has rightly closed the respondents cross-examination by the petitioners for their willful dilatory tactics adopted in the case to protract the litigation by avoiding the appearance of their counsel for respondents cross-examination and the order impugned may not thus need interference in revision. 3. It is true that the respondent has not been able to seek adjudication of his claim in the suit for the last more than ten years and the petitioners have been responsible for delaying the proceedings. Petitioners conduct of delaying the proceedings, cannot, however, be pressed into service to deny them their right to cross examine the plaintiff for non-availability of their counsel, without affording them the right to cross-examine the opposite party in the absence of their counsel. 4. When a counsel engaged in a case is found avoiding deliberately his appearance in the case, thereby stalling the proceedings in a pending lis, the courts may proceed with the case notwithstanding the non-appearance of the defaulting counsel; but after providing an opportunity to the appearing party, its right, of participation in the proceedings and doing all such acts which it had intended its counsel so to do. 5. In the present case too, the trial Court should have provided an opportunity to the petitioners to cross-examine the respondent, if they wanted so to do and thereafter closed their right of cross-examination in case they had opted not to cross-examine him. 5. In the present case too, the trial Court should have provided an opportunity to the petitioners to cross-examine the respondent, if they wanted so to do and thereafter closed their right of cross-examination in case they had opted not to cross-examine him. This has, however, not happened, And the trial Court has unnecessarily waited for the counsel for six dates of hearing to close the petitioners right to cross-examine the respondent-plaintiff, when it could have closed the defendants right even on the second date of hearing after affording opportunity to cross examine the plaintiff present in the Court, themselves. 6. That being the case, the order impugned in the Revision petition, cannot be sustained, as the closure of the petitioners right to cross-examine the plaintiff for non-availability of their counsel, without affording them any opportunity to cross-examine the plaintiff, may not be justified under law. 7. Accordingly, allowing this petition, order of November 14, 2000 passed by learned Munsiff, Hiranagar is, accordingly, set aside, allowing, the petitioners Revision Petition after condoning the delay in its filing. 8. Looking to the long pendency of the respondents suit in the Trial Court, it is considered appropriate to direct it to dispose of the suit finally, preferably within a period of one year, taking up the respondents suit after every fifteen days for further proceedings. 9. Parties through their counsel are directed to appear before the Trial Court on September 7,2009.