Adjournment—Costs—Suit cannot be dismissed for non-payment of costs—Appropriate course is to close the cross-examination of the witness and prohibit the further progress of the suit qua the defaulting party.

Mrs. Daya Chaudhary, J.: - CM No.7355-CII of 2017

This application has been moved for placing on record the certified copies of zimni orders dated 03.12.2016 to 11.01.2017 as Annexure P-5 (Colly) and also for exemption from filing certified copies of the same.

CM is allowed as prayed for.

C.R. No.1374 of 2017

2. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 18.01.2017 (Annexure P-1) passed by the Civil Judge (Senior Division), Karnal, whereby, the application for adjournment of the case filed by the petitioner has been dismissed and opportunity for cross-examination of PW Krishan Kumar and Surender Kumar was treated as NIL. A further prayer has also been made for granting one effective opportunity to cross examine said two witnesses.

3. Briefly, the facts of the case are that respondent No.1 filed a suit for possession by way of specific performance of contract of sale deed dated 20.08.2016 pertaining to the suit property and also for declaration declaring the alleged agreement to sell dated 17.01.2011 as well as General Power of Attorney dated 17.01.2011 executed by defendant No.1/petitioner in favour of defendant No.2/respondent No.2. After issuing notice in the suit, the written statement was filed by defendant No.1/petitioner. Thereafter, the case was fixed for plaintiff evidence and plaintiff/respondent No.1 examined PW Surender Kumar and tendered examination-in-chief on 21.11.2016 but his cross examination was deferred. On 03.12.2016, another PW Krishan Kumar was examined, who also tendered his examination-in-chief and thereafter, the cross-examination of said witness was also deferred. Petitioner-defendant No.1 partly cross-examined PW Krishan Kumar and the remaining cross-examination of the witness was deferred. Thereafter, counsel for defendant No.1/petitioner moved an application for adjournment of the case but the same was dismissed vide order dated 18.01.2017 and opportunity for cross-examining the said witnesses was treated as NIL. Said order dated 18.01.2017 is under challenge in the present revision petition.

4. Learned counsel for the petitioner submits that the counsel for the petitioner was not feeling well as he was suffering from respiratory problems and was unable to attend the Court. Even medical record was annexed with the application but the same was not taken into consideration. Learned counsel also submits that proper opportunities have not been granted to the petitioner to cross-examine the plaintiff witnesses, whereas, the same is necessary for just decision of the case. At the end, learned counsel submits that no prejudice is going to be caused to the other party, in case, one more effective opportunity to cross-examine the plaintiff witnesses is granted.

5. Heard the arguments of learned counsel for the petitioner and have also perused the impugned order as well as other zimni orders, which have been placed on record.

6. Facts relating to filing of suit; filing of written statement and thereafter examination of two plaintiff witnesses are not disputed. The case was pending for cross-examination of two witnesses i.e PW-Krishan Kumar and Surender Kumar. Part cross-examination of PW-5 Krishan Kumar was recorded and remaining cross-examination of said witness was deferred but on the next date also, he could not be cross-examined and cost was imposed. Both the witnesses were present but counsel for defendant No.1/petitioner could not come present as he was suffering from some ailment and an application was also moved, which was dismissed and opportunity to cross-examine the said witnesses was treated as NIL and the evidence of plaintiff respondent No.1 was closed.

7. No doubt, opportunities were granted to petitioner-defendant No.1 even after imposition of the cost. Both PWs were present and they were examined. Cross-examination of PW-5 Krishan Kumar was deferred. On the next date of hearing i.e 15.12.2016,