Ganga Prasad vs Shanti Devi
1993 Latest Caselaw 658 Del

JUDGMENT

Jaspal Singh, J.

(1) The petitioner is the defendant in a suit for possession. On 5th August, 1991 his examination-in-chief was concluded and thereafter he was cross-examined but only partly. The case was adjourned to 3rd October, 1991 for his remaining cross-examination as well as for his other evidence. Almost after an year, i.e. on July 14, 1992 the defendant moved an application praying that his statement recorded in his cross-examination on August 5, 1991 be expunged on the ground that on that day he was not medically fit being a heart patient and consequently could not give coherent answers to the questions put to him. It so happened that on 20th July, 1992 the learned trial judge by his order closed the evidence of the defendant excepting the statement of the defendant himself. The defendant moved an application for setting aside that order too. The learned Subordinate Judge by his impugned order dismissed both the applications. Hence this revision petition.

(2) The learned Counsel for the petitioner-defendant has submitted that as on August 5, 1991 the petitioner was medically unfit he was not in a fit state of mind to undergo the rigour of cross-examination and that although he made a request for adjournment the same was turned down and it was only after he had become unconscious that the case was ultimately adjourned to October 3, 1991. It is contended that on account of bad health the petitioner-defendant could not understand the questions put to him in cross-examination and consequently gave replies which were incoherent. In support my attention has been drawn to copies of the medical record which do go to show that on August 5, 1991 itself the defendant had been admitted in the Hindu Rao Hospital for his heart ailment.

(3) Needless to say the respondent-plaintiff has denied the allegation. As per him the petitioner was quite hale and hearty and had never made any request for adjournment and that the application for expunging the evidence recorded on August 5, 1991 had been moved only to wriggle out of some admissions made by him in cross-examination.

(4) Of course, the material on the record does go to show that the defendant is suffering from some heart ailment. However the perusal of the order sheet of the relevent date i.e. August 5, 1991 and the perusal of the evidence recorded by the Court on that day would go to show that before entering into the witness box the petitioner-defendant had not made any request for adjournment. He was not alone on that day. He had his lawyer by his elbow. Had he, at the time of commencement of the proceedings, been unwell and not medically fit to withstand the strain of the witness box, his Counsel would have made a request to that effect. Even he made no such request.

(5) The record shows that on August 5, 1991 the petitioner was first examined in chief and thereafter was put under cross-examination. It was only after some cross-examination that the petitioner-defendant made a request to the Court for adjournment on health grounds. The request was acceded to without loss of time and adjournment was granted. The order which appears towards the conclusion of the cross-examination conducted on that day runs as follows: "At this stage the witness requests that he is heart patient and requests for a date."

The expression "at this stage" concludes the matter. It shows that before that particular stage of cross-examination no request for adjournment was made. The petitioner, therefore, cannot be allowed to say now that he had made a request for adjournment at the very initial stage. Even otherwise, and as already noticed above, though the statement in cross-examination was recorded on August 5, 1991 the application for getting the same expunged was made almost after a year. This inordinate delay lends support to the contention of the learned Counsel for the respondent that the entire version is an after thought.

(6) Even otherwise, the statement recorded on 5th August, 1991 has been read over to him. I discern no incoherence. The answers are intelligent and coherent. It cannot thus be said that the witness was in such state of mind that he was not even in a position to understand the questions put to him in cross-examination. It may be mentioned that significantly no objection has been taken to the statement made by him on that very day in examination-in-chief. Even otherwise, had the witness been giving incoherent answers, the Counsel representing him would have stood to the ground and made a request for adjournment. As noticed above, no such request was made. What is of equal significance is the fact that the application was moved not by the earlier Counsel but by a Counsel who was engaged later on. Had the facts been true, I am sure the learned Counsel representing the petitioner- defendant on August 5, 1991 would neither have shirked from fiting his own affidavit and nor from moving the application.

(7) The perusal of the impugned order would go to show that the learned Subordinate Judge has not accepted the version of the petitioner and he being the presiding judge and the proceedings having taken place under his supervision I feel that what he writes deserves to be accepted.

(8) For the reasons recorded above I find no force in the petition as far as the first limb of the impugned order is concerned.

(9) The second limb of the impugned order relates to the closing of the evidence of the petitioner-defendant excepting, of course, his remaining cross-examination. Coming to it, it appears that the petitioner-defendant had moved an application for adjournment on health grounds. However, it did not find favor with the learned trial judge. The learned Counsel for the petitioner-defendant informs me that besides the three official witnesses all the other witnesses whose names figure in the list of witnesses were to be produced personally by the petitioner-defendant and that he could not do so because of his ill health. As far as the three official witnesses are concerned, he now submits that he was to file only certified copies of the proceedings and the orders passed in the files summoned from them.

(10) The learned Counsel for the respondent-plaintiff submits that he has no objection in case the petitioner-defendant is allowed to lead evidence confined only to the witnesses named in the list of witnesses and subject to the condition that he produces them in Court on his own responsibility. As far as certified copies of the documents are concerned he submits that he would have no objection to their mode of proof. I may hasten to add that I have been assured against that all the nonofficial witnesses named in the list would be produced by the petitioner on his own responsibility. Under the circumstances and in view of what has been noticed by me above and as the petitioner-defendant was not keeping good health on the date when his other evidence was to be recorded, I feel that the order closing his evidence deserves to be set aside. Moreso, because the learned Counsel for the respondent-plaintiff has no objection to it. I order accordingly.

(11) It appears that the suit has been pending since long. It has to have an early end. I, therefore, direct that the learned trial judge shall fix three dates preferably in the months of February and March, 1994 for recording entire evidence of the petitioner-defendant. In the meanwhile the petitioner-defendant shall file certified copies of the documents as referred to above and the same shall be admitted in evidence without any objection with regard to their mode of proof.

(12) With the observations noticed above the revision petition is partly accepted. The parties are directed to appear before the learned Subordinate Judge on 6th January, 1994 when the Court shall proceed to fix dates for evidence in the light of the order passed above. Trial Court file be sent back forthwith. No order is made as to costs.