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DEEPAK GUPTA, J. (ORAL) –

By way of this revision petition filed under Article 227 of the Constitution of India, petitioner prays to set aside the order dated 30.07.2024 (Annexure P-4) passed by learned Civil Judge (Jr. Divn.), Gurugram, whereby opportunity to cross-examine plaintiff - PW1 – Roop Lal Aggarwal, in the Civil Suit No.636 of 2022, titled as “Roop Lal Aggarwal v. MCG & Anr.”(CNR No.HRGR020008862022), has been declined.

2. Learned counsel for the petitioner contends that on 30.07.2024, when the case was fixed for recording the statement of plaintiff, the counsel for defendant No.2 (petitioner herein) was not available as he had to accompany his wife for participating in L.Lb examination and for the failure on the part of the counsel for the petitioner, he should not be penalized by declining him the opportunity to cross-examine the witness.

3. It will be relevant to reproduce the impugned order as passed by the Court on 30.07.2024, which reads as under:-

“Present: Shri Arun Yadav, Advocate for plaintiff.

Shri Surender Kumar Gupta, Advocate for defendant no. 1.

Shri Ajay Singh Tanwar, proxy counsel of Shri Kayshap Sharma, Advocate for defendant no. 2.

PW-1 Roop Lal Aggarwal (plaintiff) is present for his cross-examination. An application for adjournment filed on behalf of learned counsel for defendant no. 2 on the ground that he is unable to appear before the court due to first year LLB Exam of his wife today. Copy of date sheet placed on record. Adjournment strongly opposed by the plaintiff on the ground that he is a senior citizen and he is repeatedly harassed by the counsel for defendant no. 2 by taking unnecessary adjournments.

Perusal of file reflects that plaintiff appeared for his examination-in-chief on 07.12.2023 and his cross-examination was deferred on request made by learned counsels for defendants. He again appeared on 27.03.2024, when he was cross-examined by learned counsel for defendant no. 1, but not by learned counsel for defendant no. 2. Thereupon, the case was fixed for 10.04.2024 for cross-examination of plaintiff with a categoric direction that it shall be the last opportunity for defendant no. 2 to cross-examine him and it shall be presumed on failure that he waived his right to cross-examine the plaintiff. On 10.04.2024, the plaintiff was not present and the case was adjourned to 30.04.2024 for his cross-examination with a similar direction. On 30.04.2024, learned counsel for defendant no. 2 partly conducted the cross-examination of the plaintiff and requested that the same be deferred. Remaining cross-examination was deferred to 01.07.2024 on such request, with similar direction as stated above. On 01.07.2024, the plaintiff was again present for his cross-examination, but he was not cross-examined by learned counsel for defendant no. 2 on the ground that he was not well. The adjournment was granted by the undersigned, giving due regard to the health of learned counsel. It is pertinent to mention here that today’s date was given at the convenience of the learned counsel for defendant no. 2. Copy of date sheet produced along with the application for adjournment bears the date 26.06.2024. Meaning thereby that the learned counsel for defendant no. 2 was very well aware of the date of his wife’s examination in advance.

In the background of the aforesaid factual matrix, it appears that learned counsel for defendant no. 2 is making every possible attempt to prolong the matter and unduly harass the plaintiff (who is a senior citizen) by making him purposelessly visit the court on every date of hearing. Therefore, right of defendant no. 2 to cross-examine the plaintiff shall be closed at 4:30 p.m. today. However, learned counsel for defendant no. 2 shall be at liberty to cross-examine the plaintiff today through video-conferencing, if he so desires, or through one of his associates. His application for adjournment is declined.

To come up again as and when requested on behalf of defendant no. 2 to cross-examine the plaintiff through either of the two modes as mentioned above.

(Jyoti Grover)

Civil Judge (Jr. Divn.) Gurugram,

Date of Order:30.07.2024

(UID No. HR-0434) ”

Not only this, the Court took up the matter again on the same day, i.e. 30.07.2024 at 4.30 pm. and then passed the following order:-

“Present: Shri Arun Yadav, Advocate for plaintiff.

Shri Surender Kumar Gupta, Advocate for defendant no. 1.

Shri Ajay Singh Tanwar, proxy counsel of Shri Kayshap

Sharma, Advocate for defendant no. 2.

File taken up again at 4:30 p.m. No one has appeared on behalf of defendant no. 2 to cross-examine PW-1 Roop Lal Aggarwal (plaintiff) till now. Therefore, in pursuance of order passed in the morning today, remaining cross-examination of PW-1 is closed by court order. The witness is discharged. To come up on 05.11.2024 for remaining evidence of plaintiff and it shall be the last opportunity for the purpose.”

4. It is evident from the aforesaid orders passed by the trial Court as to in what compelled circumstances, the opportunity to cross-examine the witness was declined to defendant No.2. It is not only on 30.07.2024 that counsel for the petitioner-defendant No.2 failed to cross-examine the witness, even on several previous occasions, despite the presence of plaintiff – Roop Lal Aggarwal for the purpose of his cross-examination, the counsel for defendant No.2-petitioner failed to cross-examine him for one or the other pretext. So much so even last opportunity was provided vide order dated 27.03.2024 to cross-examine the witness on 10.04.2024, but still defendant No.2 failed to do so despite the presence of plaintiff on the next date of hearing, i.e. 30.04.2024. On that day, only part cross-examination was conducted and then the matter was again deferred at the request of counsel for defendant No.2.

5. Having noticed all the aforesaid facts and circumstances, when there appears to be deliberate attempt on the part of petitioner-defendant No.2 to delay the proceedings, the impugned order passed by the trial Court, declining the prayer to petitioner-defendant No.2 to cross-examine the plaintiff, cannot be stated to be unjustified.

6. Faced with the aforesaid situation, counsel for the petitioner makes a prayer to provide only one opportunity to cross-examine the witness, subject to costs.

7. Although, there is no justification for setting aside the impugned order dated 30.07.2024 (Annexure P-4), having noticed all the aforesaid facts and circumstances of the case and the conduct of the petitioner, but in the interest of justice, trial Court is directed to provide one opportunity to him to cross-examine PW1 – Roop Lal Aggarwal, i.e. plaintiff. This is subject to costs of Rs.50,000/- payable by the petitioner through demand draft in favour of the plaintiff-respondent – Roop Lal Aggarwal on 05.11.2024, the date already fixed thereat. It is only on payment of said demand draft of Rs. 50,000/- to the plaintiff by defendant No.2 petitioner that he will be provided opportunity to cross-examine the witness. It is made clear that in case, said costs is not paid on the said date, i.e. 05.11.2024, the present petition shall be deemed to have been dismissed.

Since this order has been passed without issuing notice to respondents, in order to avoid the delay, therefore, they will be at liberty to approach this Court, in case, they feel aggrieved by this order.

Disposed of.

Order accordingly.

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