In Order XXXIX Rule 2A proceedings, trial courts must permit cross-examination of related witnesses together if one absent, to prevent revealing defence questions and ensure justice; refusal is perverse.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this petition, the petitioners have assailed order dated 26.05.2022, passed by the Court of learned Civil Judge, Amb, District Una, H.P., which reads as under:-

“One witness namely Sanjeev Singh present but was not cross-examined by Id. counsel for respondent who stated that he wants to cross-examine all the witnesses together as his defence may be disclosed. He has also filed an application in that regard but request made therein is not found to have merits because it may not be practically possible at a time to cross-examine all the witnesses. Hence, his application is dismissed. Adjournment declined. Witness Sanjeev Singh present present has been examined and discharged without cross-examination. File be now listed for remaining Aws on 28.7.2022.”

2. This order was passed by the learned Court below in the proceedings which stands initiated against the present petitioners by the respondents under Order 39, Rule 2-A of the CIVIL PROCEDURE CODE .

3. The application which was filed by the petitioners on which the impugned order has been passed was to the effect that the plaintiffs had filed the proceedings under Order 39, Rule 2-A of the CIVIL PROCEDURE CODE which were listed for cross-examination of applicants Dharam Pal Singh and his witness Sanjeev Singh. It was averred in the application that as applicant Dharam Pal Singh was not before the Court for the purpose of cross-examination whereas his other witness Sanjeev Singh was, therefore, the cross- examination of Sanjeev Singh be deferred as the petitioners intended to cross-examine both Sanjeev Singh and applicant Dharam Pal Singh on the same day, otherwise the defence of the respondents shall be revealed to the non-examined witness. However, in terms of the impugned order, this application filed by the petitioners has been dismissed.

4. Learned Counsel for the petitioners argued that the impugned order is not sustainable as the learned Court below has failed to appreciate that there was no intent on the part of the petitioners not to cross-examine the witnesses and the prayer as was spelled out in the application was that in the larger interest of justice, as the cross-examination of both the witnesses together was necessary, as this extremely important aspect of the matter was ignored by the learned Trial Court, the impugned order is bad.

5. Having heard learned Counsel for the petitioners and having perused the impugned order as well as the application filed by the petitioners, on which the impugned order has been passed, this Court concurs with the submissions of learned Counsel for the petitioners that the impugned order is bade.

6. Taking into consideration the fact that in order to prove the contents of the application preferred under Order 39, Rule 2-A of the CIVIL PROCEDURE CODE , the contempt petitioner had filed his affidavit as well as that of one Sanjeev Singh, the request of the petitioner before the learned Trial Court that he be allowed to cross- examine both Sanjeev Singh as well as applicant Dharam Pal on same day was not unreasonable. Obviously, if Sanjeev Singh was cross-examined by the petitioners on 26.05.2022 and the cross-examination of Dharam Pal was deferred as he was not present, then whatever questions were posed to Sanjeev Singh, would have been revealed to Dharam Pal and he would have got time to propose for his cross-examination. This extremely important aspect of the matter has been ignored by the learned Court below while passing the impugned order. Learned Court below erred in not appreciating that it would have been in the interest of justice had the request of the petitioners bee