The court has the discretion to allow a party to appear for cross-examination based on a genuine explanation for non-appearance, considering substantial rights of the parties and to do substantial justice.

JUDGMENT

Harkesh Manuja, J. (Oral) - By way of present revision petition challenge has been made to an order dated 07.10.2022 passed by the Court of Civil Judge (Jr. Divn.) Bathinda, whereby, prayer made by respondent No.l/plaintiff vide application dated 15.09.2022, permitting him to appear for his own cross-examination besides recording of statement of one another witness namely Anil Kumar has been allowed. Relevant paragraphs from application dated 15.09.2022 are reproduced hereunder for reference:

'2. That earlier the above noticed case was fixed for 7.9.2022for cross examination PPKs and case was deferred for further cross examination for 14.09.2022 and the PW came present before the Hon'ble Court for cross examination but case was not enlisted the cause list of this Hon 'ble Court on 14.9.2022.

3. That on this the counsel for the petitioner enquired about the status of cases then it came to know that the case is fixed for 15.09.2022.

4.That today when the PW came present for cross examination before the Hon'ble Court, then it came to knowledge that the evidence of the plaintiff has been closed vide order dated 9.9.2022. "

2. Having impugned the order dated 07.10.2022, It has been contended on behalf of petitioner that the trial Court exceeded its jurisdiction while having allowed the application filed at the instance of respondent No.l/plaintiff in the absence of there being any challenge made to the order dated 09.09.2022 whereby, his evidence was closed by the trial Court. He further submits that in fact the passing of impugned order amounts to recalling of the order dated 09.09.2022 which as per him was impermissible.

3. On the other hand, learned counsel for respondent No.l submits that in fact the impugned order was passed by the Court, keeping in view the substantial rights of the parties and also to do substantial justice.

4. I have heard learned counsel for the parties and have gone through the paper book. I am unable to accept the submissions made on behalf of the petitioners.

5. A perusal of the application filed at the instance of respondent No.l/plaintiff shows that the reason for his non-appearance as a witness for his cross-examination before the trial Court on the date fixed i.e. 09.09.2022 was on account of bona fide confusion as regards noting down of wrong date of hearing and was duly explained therein which appears to be one of the consideration which weighed in the mind by the trial Court while exercising its discretion to again permit the respondent No.l/plaintiff to appear for his cross examination besides the other witness PW-2 Anil Kumar.

6. In the facts and circumstances of the present case, the mere technicality of not having challenged the order dated 09.09.2022 whereby, the evidence of the respondent No.l/plaintiff was closed by the trial Court cannot be considered as a bar for the trial Court to have exercised its discretion on an application filed for the purpose of allowing the respondent No.l/plaintiff so as to again appear for his cross examination. Even otherwise, the promptness on the part of the respondent No.l/plaintiff while filing the application itself shows supports his cause of non-appearance on 09.09.2022 as mentioned in the application. Still further, the Court below while passing the impugned order has nowhere chosen to opin or comment upon the contention raised by the respondent No.l/plaintiff in his application by recording it to be against record which further substantiate the genuineness of the explanation recorded in the application.

7. Accordingly, in view of the facts and circumstances narrated hereinabove, I find no justified reasons to interfere in the judicious direction exercised by the Trial Court, hence the present revision petition is therefore, dismissed.