Surender Kumar vs Arya Education Society & Ors
2023 Latest Caselaw 3551 P&H

            CR No. 5649 of 2017                              1                  2023:PHHC:050270


                        IN THE HIGH COURT OF PUNJAB AND HARYANA
                                     AT CHANDIGARH

                                                CR No. 5649 of 2017
                                                DATE OF DECISION :- April 11, 2023


            Surender Kumar                                                      ...Petitioner


                                                Versus


            Arya Education Society and others                                   ...Respondents


            CORAM: HON'BLE MR. JUSTICE H.S. MADAAN


            Present:-              Mr. Harsh Aggarwal, Advocate for the petitioner.

                                   Mr. Mukesh Kumar Verma, Advocate for respondent No. 1.

                                               ***

1. Under challenge in this revision petition is the order dated

2.8.2017 passed by Civil Judge (Junior Division), Rewari in civil suit titled

'Arya Education Society, Narayanpur, Tehsil and District Rewari, versus

Dharam Chand and others' pending in that Court vide which permission for

recalling PW3 Sarita for further cross-examination has been declined. This

revision petition has been filed by one of the defendant in the civil suit

namely Surender Kumar.

2. Briefly stated the facts of the case are that during the course of

proceedings before the trial Court, defendant No. 2 Surinder Kumar had

filed an application under Order 18 Rule 17 read with Section 151CPC for

permission to recall the witness PW3 Sarita Saini (Principal of S.T. Convent

School) for her further cross-examination with regard to the hand writing of

resolution Ex.P1 and resignations Ex.P8 to Ex.P10. It was further prayed PARVINDER SINGH 2023.04.12 16:39 I attest to the accuracy and integrity of this order/judgment Chandigarh CR No. 5649 of 2017 2 2023:PHHC:050270

that while recalling PW3 Sarita Saini she should be directed to bring with

her other documents written by her in her hand writing in Hindi and English

language. Interalia in the application it was contended that when Smt. Sarita

Saini got her statement recorded as PW3 during her cross-examination she

has accepted that she does not know in whose hand writing is body writing

Mark 'C' Ex. P7. Whereas PW 1 Yogesh during his cross-examination has

stated that resolution copy Ex.P1 is in handwriting of School Principal Smt.

Sarita Saini, therefore, it has become necessary to get the comparison of

hand writing of the body of resolution Ex.P1 as well as Mark-E and Mark-C

of receipts Ex.P6 and Ex.P7, therefore, such application be accepted.

3. The application was opposed by the plaintiff. The trial Court

vide impugned order dated 2.8.2017 had dismissed the application. The

operative part of the order contained in para No. 5 is being reproduced for

ready reference :-

"Having heard the arguments and perusal of the case file goes to show that for further cross-examination of PW3 Sarita Devi qua her hand writing and body writing over resolution Ex.P1 and resignation Ex.P8 to Ex.P10 and for giving further direction to bring her other document and writing this application filed by defendant no. 2. PW3 has already been cross-examined by the plaintiff. Said document which he wants to put to the witness were already within his knowledge and against specific question, she already denied her hand writing over receipts Ex.P1 and Ex.P7 at Mark-E and Mark-C. Party must have to stand on his own legs to prove his stand. PW3 is not party in this suit, she is witness where sufficient opportunity was given to defendant;

therefore, just to bring more document of her writing so that defendant may examine the same from expert to contradict with disputed resolution or receipt bearing admitted signature of defendant Surender, who is legally educated and working as teacher, is not necessary for PARVINDER SINGH just and proper decision of the case. No party is allowed to take 2023.04.12 16:39 I attest to the accuracy and integrity of this order/judgment Chandigarh CR No. 5649 of 2017 3 2023:PHHC:050270

advantage of his own wrong and cannot allow to filling his lacuna. For putting material question, witness cannot allow to be recalled (See. Birander Singh vs. Babu Ram 2007(#) CCC 620 (P&H). Serious prejudice will cause to the rights of the plaintiff if application allowed. Hence, application stands to be dismissed with liberty to get hand writing expert opinion/report at his own responsibility."

4. Feeling aggrieved defendant No. 2 has filed a revision petition

before this Court. Notice of the revision petition was given to respondent

plaintiff who has put in appearance through counsel.

5. I have learned counsel for the parties besides going through

record.

6. I find that the application was rightly rejected by the trial Court.

Once PW3 Sarita Saini during her cross-examination had denied that the

disputed hand writing is of her, there is no question of recalling her along

with documents to face further cross-examination. The defendant is to prove

his version by bringing evidence and he cannot seek recall of PW3 Sarita

Saini for such as purpose. I do not find any illegality or infirmity in the

order. That order does not have any element of arbitrariness or perversity. No

interference of this Court with the impugned order while exercising

revisional jurisdiction is called for.

7. Learned counsel for the revision petitioner has referred to

judgments of the Apex Court titled 'Ram Rati versus Mange Ram (D) Thr

Lrs & Ors.' passed in Civil Appeal No. 1684 of 2016 and 'Sameer Suresh

Gupta Therough Pa Hoder versus Rahul Kumar Agarwal' passed in Civil

Appeal No. 2218 of 2013 and another judgment of this Court titled 'Suresh

Kumar Yadav and another versus Seema Yadav' passed in CR-3260-2019

(O&M). Those judgments are not helpful to him due to different facts and PARVINDER SINGH 2023.04.12 16:39 I attest to the accuracy and integrity of this order/judgment Chandigarh CR No. 5649 of 2017 4 2023:PHHC:050270

circumstances. The trial Court was justified in dismissing the application

The revision petition is found to be without any merit and is dismissed

accordingly. Nothing discussed above shall constitute any opinion on the

merits of the case. The interim order passed on 24.8.2017 directing the trial

Court to adjourn the proceedings beyond the date fixed in this Court thus

comes to an end.

                                                         (H.S. MADAAN)
                                                             JUDGE
            April 11, 2023
            p.singh


            Whether speaking/reasoned                               Yes/No

            Whether Reportable                                      Yes/No




PARVINDER SINGH
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh