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2023 DIGILAW 557 (PNJ)

Jatinder Singh v. Punjab National Bank

2023-02-07

VIKAS SURI

body2023
JUDGMENT Vikas Suri, J. - This is a petition preferred under Article 227 of the Constitution of India seeking setting aside the order dated 05.12.2022 (Annexure P-11) passed by the Executing Court, whereby opportunity to cross-examine the objector's witness, OW-1 Banwari Lal Ola, was treated as nil. 2. Shorn of unnecessary details, the facts giving rise to the present petition are that the petitioners are 'landlord' and the proforma respondent Nos.2 and 3 are their 'tenant'. The petitioners sought ejectment of their tenants from the demised premises on account of non-payment of arrears of rent. The terms and conditions of the lease agreement between the landlord and tenant was reduced into writing dated 05.09.2013, described as Memorandum of Understanding cum Lease Agreement. Before the Rent Controller, the tenant was stated to be in arrears of rent and in view of the law settled in Rakesh Wadhawan vs. M/s Jagdamba Industrial Corporation, 2002(1) RCR (Rent) 514, provisional rent was assessed to the tune of Rs. 1,35,49,625/-. As the tenants failed to pay the provisional rent, order of eviction dated 10.05.2019 (Annexure P-2) was passed in favour of the petitionerlandlord and against the tenants. 3. Thereafter, the petitioners filed execution application seeking possession of the demised premises from respondent Nos.2 and 3. The said execution proceedings were resisted tooth and nail by the tenant-judgment debtors. The tenant-judgment debtors impugned the various orders passed by the Executing Court before this Court by way of CR-1938-2020, which petition was dismissed vide order dated 05.01.2021 (Annexure P-4). Respondent No.l-Bank filed objections in the said execution proceedings and has averred that the tenants had mortgaged the lease hold rights in the demised property in favour of the objector Bank. It was thus prayed in the objection petition that possession of part of the demised property obtained by the decree holder in the execution proceedings, be ordered to be delivered to the objector-Bank. The objections were hotly contested and the Executing Court, being of the opinion that the question of fact could only be determined by leading evidence, framed issues vide order dated 10.10.2022 (Annexure P-6). 4. After framing of the issues, the matter was adjourned to 11.11.2022 for the evidence of the objector-Bank. The objections were hotly contested and the Executing Court, being of the opinion that the question of fact could only be determined by leading evidence, framed issues vide order dated 10.10.2022 (Annexure P-6). 4. After framing of the issues, the matter was adjourned to 11.11.2022 for the evidence of the objector-Bank. On the adjourned date, examination-in-chief of OW-1 Banwari Lal Ola, Chief Manager of the objector-Bank was recorded and his cross-examination was deferred at the request of counsel for the decree holder i.e. the petitioners. An application for framing of additional issues was also filed by the objector-Bank. The matter was thereafter adjourned to 05.12.2022 for cross-examination of OW-1 Banwari Lal Ola and for filing reply to the application noticed above. On 05.12.2022, on the request of the counsel for the decree holder, cross-examination of the said witness was deferred to post lunch session. When the matter was taken up post lunch, a request was made on behalf of the counsel Mr. T.S. Sandhu, Advocate, by moving an application seeking adjournment on the ground that the said counsel for the decree holder was not available in the Court as he had to leave due to some personal urgency. It is submitted that the spouse of the said counsel was critically unwell then and has unfortunately passed away. The Executing Court only considered the aspect that the witness has come present from Rajasthan and assurance was meted out that the cross-examination would be conducted post lunch but the same has not been preferred. Accordingly, the application seeking adjournment was declined and the impugned order was passed, whereby it was ordered that the cross-examination of the witness OW-1 Banwari Lal Ola, is treated as nil. 5. Learned counsel for the petitioners submits that the petitioners-DH would suffer irreparable loss if they are not allowed to cross-examine the official witness of the Bank that is claimed to have acquired lease hold rights on account of the tenants having submitted/mortgaged the lease hold rights under the agreement dated 03.02.2014. It is contended that a lessee has no right to create a charge on the tenancy/lease rights, especially when no such authority was given by the landlord. In the present case, the terms and conditions of letting out the demised premises to the judgment debtor was reduced into writing by the instrument dated 05.09.2013 (Annexure P-1) and the same does not grant any such permission. In the present case, the terms and conditions of letting out the demised premises to the judgment debtor was reduced into writing by the instrument dated 05.09.2013 (Annexure P-1) and the same does not grant any such permission. 6. Heard learned counsel for the petitioners and with his able assistance perused the impugned order and other documents available on the file. 7. This petition is being disposed of without issuing notice, as that will not only prolong the case but also unnecessarily burden the other party with expenses. 8. It is not disputed in the pleadings that the petitioners have no privity of contract with the objector-Bank. The landlord-DH should not be prejudiced on account of the dealings of the judgment debtor-tenants with the respondent-Bank, in the absence of any acquiescence or positive representation to the Bank on behalf of the landlord. The issues were framed by the Executing Court on 10.10.2022 and on the next date itself, the examination-in-chief of OW-1 Banwari Lal Ola was recorded and the proceedings were adjourned to 05.12.2022 for cross-examination. The said witness could not be cross-examined on the said date and accordingly the impugned order dated 11.11.2022 was passed, whereby opportunity to cross-examine was treated as nil. 9. It is submitted that the cross-examination could not take place on the said date on account of reasons beyond the control of the decree holder. In case there is lapse on the part of the petitioners, it was because of the personal urgency, on account of medical exigency in the family of their counsel and thus, the request for adjournment cannot be said to be without bona fide reason. It deserved to be considered that no unnecessary adjournment had been sought and it was only the second date after framing of the issues, therefore, one opportunity to cross-examine the said witness subject to imposition of costs to compensate the witness coming from Rajasthan, should have been granted. However, without due consideration on that aspect, the application seeking adjournment was declined and the opportunity to cross-examine was treated as nil. 10. Order XVII Rule 1 CPC, deals with grant of time and adjournments. The said provision is reproduced here under:- 1. However, without due consideration on that aspect, the application seeking adjournment was declined and the opportunity to cross-examine was treated as nil. 10. Order XVII Rule 1 CPC, deals with grant of time and adjournments. The said provision is reproduced here under:- 1. Court may grant time and adjourn hearing.-(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits. (2 ) Costs of adjournment.-In every such case the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit: Provided that,- (a) When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary, (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid." 11. A perusal of the record would show that prima facie the Executing Court was not fully satisfied with the objections raised by the objector-Bank, for being decided summarily and thus, issues were framed for leading evidence to establish the question of fact advanced by the objector. It is referred to by learned counsel for the petitioner, to be noticed that the order dated 10.10.2022 (Annexure P-6) framing issues, has been impugned by way of CR-5711-2022, in which notice of motion was issued vide order dated 05.12.2022 (Annexure P-10) and the said petition is still pending. 12. A coordinate Bench, in Mohinder Singh vs. Satnam Singh, 2017(3) RCR (Civil) 569, examined the aforesaid provisions in light of similar circumstances to hold that where a genuine and bona fide request is made for adjournment, instead of resorting to forfeiture of the right to cross-examine, the Court may grant time by imposing costs. It was further held that it is settled proposition of law that a party should not suffer on account of negligence or inaction on the part of his/her counsel. Likewise in the present case, the cross-examination of the witness is necessary to decide the real controversy between the parties and it is lawful requirement of a fair trial that an opportunity should be granted. In case adequate opportunity is not granted to the parties to the dispute to prove their stand, it is likely to cause serious prejudice to the case and resultantly in injustice. Moreover, no prejudice is going to be caused to the objector and it can be compensated with adequate costs in this connection. 13. In Balkar Singh vs. Nirmal Singh, 2017(1) PLR 684, this Court had granted one opportunity to cross-examine the witnesses subject to payment of costs to each witness, keeping in view the serious consequences likely to ensue on account of failure of the petitioner to cross-examine the said witnesses. 14. Similar view was taken by other coordinate Benches while granting reasonable opportunity to the parties to cross-examine their witnesses in Ved Parkash and another vs. Singara Singh and others, 2017(1) Law Herald 538 and Kiran Bala vs. Surinder Sharma, 2017(3) RCR (Civil) 310. 15. 14. Similar view was taken by other coordinate Benches while granting reasonable opportunity to the parties to cross-examine their witnesses in Ved Parkash and another vs. Singara Singh and others, 2017(1) Law Herald 538 and Kiran Bala vs. Surinder Sharma, 2017(3) RCR (Civil) 310. 15. In the present case, the Executing Court has not considered the personal difficulty of the counsel for the decree holder and has apparently taken a strict view on account of the fact that the matter was kept post lunch for cross examining the witness on the request of counsel for the DH-petitioners but post lunch, an application seeking adjournment was filed due to the personal urgency (medical exigency) that had arisen. 16. Keeping in view the above noticed facts and having perused the documents available on the file, considering the peculiar facts and circumstances of the case, I am of the considered view that ends of justice would be met if the petitioners are granted one more opportunity to cross-examine the witness and for the inconvenience caused, the outstation witness be compensated by payment of adequate costs. It is not the case of the objector that the said witness was the only witness or the last one to be examined. 17. Accordingly, the present revision petition is allowed and the impugned order treating the cross-examination of OW-1 Banwari Lal Ola as nil, is hereby set aside to that extent. The trial Court is directed to give one effective opportunity to the decree holder-petitioners to cross-examine OW-1 Banwari Lal Ola, subject to payment of costs of Rs. 10,000/-. Out of the said costs payable to the objector Bank, Rs.5,000/- be given to the witness who has to travel inter-state to attend Court for the purposes of cross-examination. 18. The revision petition is disposed of in the aforesaid terms.