The plaintiff, as the dominus litis, has the right to decide which witness to examine and give up, and the defendant cannot compel the Court to summon a witness cited by the plaintiff.

JUDGMENT :

Vikram Aggarwal, J.

1. By way of the present revision petition preferred under Article 227 of the Constitution of India, the petitioner assails the order dated 06.09.2021 (Annexure P-3), passed by the Civil Judge (Junior Division), Rupnagar vide which the respondent-plaintiff was permitted to give up witness namely Harnek Singh (PW2) inspite of his examination-in-chief having been recorded.

2. The facts, briefly put, are that the respondent-plaintiff Amrik Singh filed a suit for possession of house measuring 2 Biswa 8 Biswansi (fully described in the plaint), situated in Village Fatehpur, Tehsil Chamkaur Sahib, District Rupnagar by way of specific performance of agreement to sell dated 11.01.2016. It was the case of the respondent-plaintiff that the present petitioner-defendant had agreed to sell his house to the respondent-plaintiff for a consideration of Rs.2,25,000/- but had backed out of the same. In the alternative, recovery of Rs.3,20,000 being double the amount of the earnest money of Rs.1,60,000/-was sought.

3. The suit was opposed by the petitioner-defendant. In the written statement (AnnexurP-2), it was pleaded that no such agreement to sell had been executed and that infact a sum of Rs.1,00,000/- had been taken by the petitioner-defendant on account of the marriage of his daughter. An agreement was executed which was not read by the petitioner-defendant and that the same had been misused by the respondent-plaintiff. During the course of the trial, one person namely Harnek Singh, Numbardar, who was stated to be a witness to the agreement to sell was sought to be examined as PW2. His examination-in-chief by way of an affidavit was recorded and the said affidavit (Annexure P-4) was tendered in evidence. However, on the day when he was to be cross-examined, the respondent-plaintiff made a request to the trial Court that he did not wish to examine PW2 Harnek Singh as a witness and that he wanted to give him up as he had been won over by the petitioner-defendant. The request was allowed leading to the filing of the present revision petition.

4. It would be relevant to mention here that no one appeared on behalf of the respondent despite service.

5. I have heard learned counsel for the petitioner and have gone through the paper book.

6. Learned counsel for the petitioner submitted that the trial Court erred in permitting the respondent-plaintiff to give up PW2 Harnek Singh after his examination-in-chief had been recorded. It was submitted that the permission to give up PW2 Harnek Singh had greately prejudiced the rights of the petitioner-defendant as he intended to cross-examine the said witness on material points. In support of his contentions, learned counsel relied upon the judgment of Hon’ble Supreme Court of India in Ameer Trading Corporation Ltd. Versus Shapoorji Data Processing Ltd. 2004 (1) R.C.R. (Civil) 259 as well as the judgments of Coordinate Benches of this Court in M/s S.K. Bimal Kumar and another versus M/s Nanak Singh and others 2012 (44) R.C.R. (Civil) 104 and Ranbir versus Satish Chander and another 2018 (1) R.C.R. (Civil) 791.

7. I have considered the submissions made by learned counsel for the petitioner.

8. Admittedly, the respondent-plaintiff is the dominus litis of this case. No doubt, it appears from the paper book that the affidavit of PW2 Harnek Singh was tendered in evidence on 04.08.2021 as the affidavit is on record as Annexure P-4. However, on 06.09.2021, the respondent-plaintiff gave up PW2 Harnek Singh. In the considered opinion of this Court, being the dominus litis, the plaintiff-respondent had every right to decide as to which witness he wanted to examine and which witness he wished to give up. Merely because the affidavit had been tendered in evidence would not mean that the witness had to be cross-examined. Many times it happens that the witnesses appear in the witness box for examination-in-chief but do not subsequently appear in the witness box for cross-examination. Under the circ