The necessity of cross-examination for uncovering the truth and adhering to the principles of the Indian Evidence Act, 1872.

SANJAY VASHISTH, J.

1. By way of present revision petition, order dated 24.08.2023 passed by the Court of Additional Civil Judge (Senior Division), Patti (learned trial Court) has been challenged, whereby, request of the plaintiff for recalling its witness i.e. PW-2 – Resham Singh Deed Writer for conducting the cross-examination, at the instance of the defendant has been declined.

2. Mr. Joginder Pal Devgan, Advocate, puts in appearance on behalf of respondent and files his power of attorney in Court today, which is taken on record, subject to all just exceptions. Office to tag the same at appropriate place in case file.

3. Counsel for the petitioner submits that plaintiff filed a suit for recovery of an amount of Rs.9,00,000/- along with its interest. Said institution of the suit is based upon the documentary evidence i.e. pro note dated 27.08.2015, scribed by Resham Singh (PW-2).

Further submits that said witness appeared in witness-box and submitted his affidavit Ex.PW-2/A for the purpose of its examination-in-chief but for the purpose of cross-examination, said witness was deferred for the reason that defendant’s counsel was not available. To authenticate the submission, counsel for the petitioner/plaintiff produces the copy of the statement regarding tendering of the affidavit Ex.PW-2/A on 29.07.2019. Same is taken on record and for the purpose of convenience, relevant part is reproduced hereunder:-

“PW 2 Resham Singh aged 60 son of Major Singh deed writer Patti, Tehsil Patti, District Tarn Taran.

On SA.

I tender into evidence my duly sworn affidavit Ex.PW2/A along with documents Ex.P1, Ex.P1/A and Ex. P2, which may be read as part and parcel of my examination in chief in my evidence.

XXXXXXXXXXX as learned counsel for the defendant is not available.

RO&AC

(Munish Garg)

ACI(SD)/Patti

29.07.2019

UID No.PB0310”

Counsel for the petitioner further submits that in fact, thereafter, several opportunities were granted to the plaintiff for producing the evidence but never any specific order was passed in regard to the producing of the witness i.e. PW-2 – Resham Singh, for the purpose of the cross-examination at the instance of the defendant.

Even, defendant also never made request either oral or in writing to call for the witness for the purpose of cross-examination of the said witness, which was deferred on 29.07.2019 for the reason that defendant’s counsel was not available.

4. Counsel for the petitioner further submits that after the deferring of the witness for the purpose of cross-examination by the Court on 29.07.2019, there was a pandemic COVID-19 situation, which continued for more than two years. Therefore, said fact was left unnoticed by the plaintiff that he is required to produce Resham Singh for the purpose of his cross-examination at the instance of the defendant. However, at this stage, when it was noticed, a request was made but same was declined by the trial Court vide impugned order dated 24.08.2023.

Thus, he submits that if one opportunity is granted, it will meet out the ends of justice and by affording said opportunity to the plaintiff, rights of the defendant are not going to get prejudiced.

5. On the other hand, learned counsel appearing on behalf of the respondent-defendant, while opposing the contention of counsel for the petitioner, vehemently submits that the impugned order has been passed, as per law. In fact, more than 25 opportunities have been afforded to the plaintiff for the purpose of leading his evidence. Thus, it is a fault of the plaintiff himself that he failed in producing the said witness for the purpose of conducting of his cross-examination at the instance of the defendant. For the said fault, the trial of the suit should not be prolonged.

6. I have heard counsel from both the sides and perused the record available before me and am of the view that trial Court perhaps, could not notice the situation in its totality, because there is nothing mentioned about the two years’ period i.e. of the pandemic of COVID