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2023 DIGILAW 2218 (PNJ)

Shankar Kapoor v. Manjit Kaur

2023-07-19

SANJAY VASHISTH

body2023
JUDGMENT Mr. Sanjay Vashisth, J. (Oral) By way of present revision petition, challenge has been made to the order dated 30.10.2019 vide which application filed by the petitioner-landlord under section 151 CPC for recalling the witness-Shankar Kapoor who earlier appeared as PW-1, was dismissed. 2. Counsel for the petitioners submits that in fact, evidence of Shankar Kapoor was recorded in affirmative evidence at the first instance and said witness was cross-examined at length by the respondent. It is further submitted that after partly cross-examining the witness-Shankar Kapoor as PW-1, his further cross-examination was deferred on 13.03.2018 on request of the counsel for the respondent. Thereafter, case was adjourned to 04.04.2018 for cross-examination of the said witness and remaining evidence was also called for. On the next date i.e. 04.04.2018, though the Court order shows that no witness was present, yet, presence of petitioner (Shankar Kapoor) can be verified from the signature appended on the order-sheet of that date. 3. Subsequently, another witness Dipankar Kapoor was also examined as witness No.4, whose evidence was also closed after his cross-examination on 30.04.2019. 4. Thereafter, without noticing the fact that cross-examination of Shankar Kapoor (PW-1) was earlier deferred on request of the respondent, counsel for the petitioner under a bona fide mistake/belief closed his oral evidence on 30.04.2019 itself. 5. Subsequently, the witnesses from the respondent's side were also examined. After closing of the evidence of both the sides, when the case was listed for rebuttal evidence, said mistake was noticed by the Court itself. Further, Court noticed that cross-examination of Shankar Kapoor (PW-1) was not completed, though, on several dates of hearing, he was cross-examined. This fact is mentioned in paragraph No.4 of the impugned order along with another fact that the reason of deferring of the said witness was that the respondent wanted to confront him with certain documents, which were never brought on the record nor the said witness insisted for completing his cross-examination. 6. On the other hand, learned counsel for the respondent submits that once the counsel for the petitioner had closed evidence, there was no occasion with him to make request to the Court for adjourning the case for further affirmative evidence because the respondent wanted to cross-examine Shankar Kapoor (PW-1), whose evidence was deferred on request of the respondent. 7. 6. On the other hand, learned counsel for the respondent submits that once the counsel for the petitioner had closed evidence, there was no occasion with him to make request to the Court for adjourning the case for further affirmative evidence because the respondent wanted to cross-examine Shankar Kapoor (PW-1), whose evidence was deferred on request of the respondent. 7. Although, there is no explanation with the respondent that the documents with which he wanted to confront the witness were available with him or not, still, learned counsel for the respondent submits that the application moved by the petitioner is just to fill the lacunae and therefore, the order passed by the trial Court is reasoned one and thus, present petition also deserves to be dismissed. 8. I have heard both the sides, gone through the petition, impugned order and the appended documents. 9. This Court realises that for not submitting for cross-examination by Shankar Kapoor (PW-1) before closing of the evidence of the petitioner, counsel for the petitioner himself remained under a bona fide belief, because there was never any mentioning or pointing out by the counsel for the respondent or respondent himself that he is in possession of certain documents, with which he wanted to confront the witness. Thus, keeping silence by the respondent throughout the trial proceedings after deferring of Shankar Kapoor witness (PW-1), also does not seem to be fair on his part. 10. Therefore, considering all the aspects and more in the interest of justice and applying the principle of equity, this Court is of the view that the application moved by the petitioner ought to have been allowed by granting one opportunity to the witness Shankar Kapoor (PW-1) for offering himself to the respondent for cross-examination, if so desired by him. 11. Accordingly, the impugned order dated 30.10.2019 passed by the Court of Ld. Rent Controller, Rupnagar is set-aside with a direction to give a chance to the petitioner to appear again before the Court in the capacity of PW-1 and then to offer himself for further cross-examination to the respondent. 12. However, it would be subject to the payment of costs of Rs.5,000/- to be deposited with Punjab and Haryana High Court Association Lawyer's Family Welfare Fund having account No.41564846387 with State Bank of India, High Court Branch, Chandigarh. 13. Disposed of.