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2018 DIGILAW 1223 (HP)

Sarita Devi v. Rishi Dhiman

2018-07-05

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J. - By way of this petition filed under Article 227 of the Constitution of India, petitioner has laid challenge to order dated 17.10.2017, passed by learned Additional District Judte (III), Kangra in case HMA No. 7-D/III/2012. 2. Grievance of the petitioner is that no proper opportunity was given to him to cross examine plaintiff witness Rishi Dhiman by the learned trial Court. Record demonstrates that the case was listed before the learned trial Court on 17.10.2017 for recording evidence of the plaintiff. On the said date, PW Rishi Dhiman tendered his evidence by way of affidavit. Record further demonstrates that learned trial Court recorded the statement of Rishi Dhiman to the effect that his affidavit be read as his statement, which was exhibited as PW1/A. With regard to opportunity of cross examination, the following stands recorded by the learned trial Court:- "xx Cross by Sh. V.K. Vashishth Adv for respondent -opportunity given-Nil-" 3. Thereafter learned trial Court passed the following order:- "One PW Rishi Dhiman present and his statement recorded. Petitioner evidence closed by the petitioner vide separate statement recorded. Be listed for respondent evidence on 30-10-2017. Steps be taken within 5 days." 4. On the strength of the said record, learned Counsel for the petitioner has argued that reasonable opportunity was not granted by the learned trial Court to the petitioner to cross examine PW Rishi Dhiman because it was practically impossible for the petitioner to have had cross examined Rishi Dhiman on the very same date, when his evidence by way of affidavit was not tendered in the Court. According to the learned Counsel for the petitioner, in such like situation, where a party tenders evidence by way of affidavit, the Court has to grant some reasonable time to the other party to go through the said affidavit and then cross examine the said witness. This, having not been done in the present case, has led to great injustice to the petitioner, as per his learned Counsel. 5. On the other hand, learned Counsel for the respondent has submitted that this is the general practice which is adopted and there was no perversity in the order. 6. Having heard learned Counsel for the parties and perused the records, in my considered view, there is merit in the contention of learned Counsel for the petitioner. 5. On the other hand, learned Counsel for the respondent has submitted that this is the general practice which is adopted and there was no perversity in the order. 6. Having heard learned Counsel for the parties and perused the records, in my considered view, there is merit in the contention of learned Counsel for the petitioner. This Court is not concerned whether it is usual practice or not that on the date fixed for recording of statement of the witnesses, when affidavit is tendered in examination-in-chief, then on the same date, cross examination of the witness has to be done. The issue is whether such practice is reasonable or not. In my considered view, the answer is in negative. When a witness, as a substitute of recording examination-inchief in the Court, tenders his or her evidence by way of affidavit, then prudently, the other party requires some reasonable time to go through the same before it can cross examine the said witness. This situation can be addressed by either providing the copies of the affidavit in advance to the other party, i.e. at least a week before the date of evidence in the Court and if such affidavits are tendered on the date of evidence itself, then, by deferring the matter for cross examination by granting reasonable and sufficient time in this regard to the other party. 7. In view of above discussion, in my considered view, the impugned order is liable to be quashed and set aside because it cannot be said that reasonable opportunity was granted by the learned trial Court to the defendant to prepare for the purpose of cross examination of the plaintiff witness(s). 8. At this stage, learned Counsel for the petitioner apprised the Court that he had also filed an application for review of the impugned order before the learned Court below. In view of orders passed in the present petition, he shall be at liberty to withdraw the said application. 9. Accordingly, present petition is allowed and the impugned order dated 17.10.2017, passed by the learned Additional Sessions Judge-III, Kangra at Dharamshala, in HMA No. 7-D/III/2012, is quashed and set aside. In view of orders passed in the present petition, he shall be at liberty to withdraw the said application. 9. Accordingly, present petition is allowed and the impugned order dated 17.10.2017, passed by the learned Additional Sessions Judge-III, Kangra at Dharamshala, in HMA No. 7-D/III/2012, is quashed and set aside. Parties through their learned Counsel are directed to appear before the Court of learned Additional Sessions Judge-III, Kangra at Dharamshala on 06.08.2018, on which date, learned Court below shall fix a date for giving an opportunity to the present petitioner to cross examine PW Rishi Dhiman. Petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.