Himachal Pradesh High Court

CMPMO/670/2022 on 29 December 2022

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.670 of 2022

Date of Decision: 29.12.2022 Ramesh Chand

.....Petitioner. Versus Ram Murti

…..Respondent.

Coram

The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 For the petitioner : Mr. Ajay Sharma, Sr. Advocate with

Mr. Atharv Sharma, Advocate.

For the respondent : None.

Sandeep Sharma, Judge

(oral).

By way of instant petition filed under Article 227 of the Constitution of India, challenge has been laid to order dated 12.12.2022 passed by the learned Sr. Civil Judge, Court No.1, Amb, District Una, H.P., whereby evidence of the plaintiff was ordered to be closed without affording an opportunity of cross-examination to the defendant.

2. Having regard to the nature of the order proposed to be passed in the instant proceedings, this court sees no necessity to issue notice to the respondent because in the event of notice being issued to him, he would be unnecessarily compelled to engage a lawyer to defend his case, which can be otherwise disposed of on the basis of material already available on record.

3. Though, after having heard learned counsel representing the petitioner and perused the material available on record vis-a-vis reasons assigned in order dated 12.12.2022 whereby evidence of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

plaintiff came to be closed without there being an opportunity of cross-examination to the defendant, this Court finds that there is no illegality and infirmity in the impugned order passed by the learned Court below, but having taken note of the explanation rendered on record qua the absence learned counsel representing the defendant at the time of recording the statement of plaintiff’s witness, this Court is of the view that no prejudice to either of the parties would be caused, if one opportunity is granted to the defendant to cross-examine the plaintiff’s witnesses, who were examined on 12.12.2022. Careful perusal of the zimini order placed on record, especially dated 12.12.2022 as well as of affidavit filed by learned counsel representing the plaintiff reveals that the matter was repeatedly adjourned on the request made by learned counsel representing the defendant on account of pre-occupation of his counsel. Though affidavit filed by learned counsel representing the defendant suggests that he was pre-occupied in some other work but even otherwise also, it is well settled by now that litigant cannot be allowed to suffer on account of the fault, if any, of the lawyer. Since the defendant had already entrusted brief to his lawyer, it was his duty to remain present, but as has been noticed above, learned counsel representing the defendant was unable to come present in the court, as he was busy in some other work, as such, learned Court below, instead of passing order dated 12.12.2022 thereby closing the right of cross- examination of the defendant, ought to have deferred the cross- examination to some other date.

4. Consequently, in view of the above, order dated 12.12.2022 inasmuch as right of the defendant to cross-examine plaintiff’s witness examined on 12.12.2022 came to be closed, is quashed and set aside with a direction to the learned Court below to afford one opportunity to the defendant to cross-examine the plaintiff’s witness examined on 12.12.2022. Learned counsel representing the petitioner undertakes to cause presence of defendant or his counsel on 4 th January, 2023, before learned Court below enabling it to fix a date preferably on or before 6th February, 2023 for cross-examination of plaintiff’s witnesses, whose statement were recorded on 12.12.2022. It is made clear that in case defendant or his counsel fail to appear before the learned Court below for cross-examination of the plaintiff’s witness on the given date, his right to cross-examine shall stand automatically closed and no further opportunity would be granted for the said purpose.

5. In view of the above, the present petition is disposed of in the aforesaid terms, so also the pending application(s), if any. (Sandeep Sharma)

Judge

29th December, 2022 (CS)

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