Baljinder Singh vs Gurvinder Kaur and Others

Sat Pal, J.—This petition has been directed against the order dated 11.9.1997 passed by Civil Judge (JD) Mansa. By this order, the learned Civil Judge has allowed the application moved by LRs of defendant No.1 (Parminder Singh) to cross-examine the witness of the plaintiff and to lead their evidence.

Briefly stated the facts of the case are that the petitioner/plaintiff filed a suit for recovery of Rs. 1,11,689/- against four defendants including deceased Parminder Singh in the year 1989. It is an admitted fact that all the defendants filed the joint written statement in the suit. Initially case was fixed for evidence in the year 1991 but thereafter the defendants filed an application for amendment of the written statement which was allowed and accordingly amended written statement was filed on behalf of the defendants. As a result of the amended written statement one issue was recast on 27.2.1992 and the case was adjourned to 20.4.1992. Meanwhile defendant Parminder Singh died in the month of March, 1992.

Copies of the Jimni order which have been re-produced in the grounds of revision show that on 9.6.1992 an application filed by the learned counsel of deceased Parminder Singh for adjournment was allowed to enable him to file an application for bringing on record LRs of Parminder Singh. The evidence of the plaintiff was closed in the year 1994 and all the witnesses produced by the plaintiff were duly cross-examined by the learned counsel of the defendants. Thereafter defendants also examined their witnesses.

It was only on 29.4.1997 that an application was moved for bringing on record LRs of deceased Panninder Singh and this application was allowed on 14.5.1997. After lapse of more than three months from the order allowing the aforesaid application, LRs of deceased Parminder Singh filed an application dated 19.8.1997 for recalling all the witnesses examined by the plaintiff and also seeking permission of the Court to examine their witnesses. This application has been allowed by the impugned order dated 11.9.1997.

Mr. Dhaliwal, the learned counsel appearing on behalf of the petitioner submits that under Order 22 Rule 10-A C.P.C., the contract between the pleader and the deceased party is deemed to subsist. He further submits that admittedly the learned counsel who had been appearing on behalf of deceased Parminder Singh and who was a counsel for other defendants also had cross-examined all the witnesses produced by the plaintiff. He further submits that even the joint written statement was filed on behalf of the defendants. He also submits that under Sub-rule 3 of Rule 4 of the Order 22 of C.P.C. framed by this High Court, in case one of the defendants dies during the pendency of the case, a judgment shall have the same force and effect as if it had been pronounced before the death took place. He, therefore, contends that the LRs of the defendant Parminder Singh cannot be permitted to cross-examine the witnesses who have already been cross-examined by the learned counsel of deceased Parminder Singh. In support of his submission, the learned counsel placed reliance on a judgment of this Court in Smt. Neelam Chauhan v. Madan Gopal 1989 (1) R.R.R. 277.

Mr. Ladhar, the learned counsel appearing on behalf of the respondents, however, submits that all the witnesses of the plaintiff were examined after the death of deceased Parminder Singh and since all the witnesses have been cross-examined at the back of deceased Parminder Singh, LRs of Parminder Singh are entitled to cross-examine all these witnesses and also they should be permitted to examine their witnesses. In support of his submission the learned counsel placed reliance on a judgment of this Court in Jagdish Parsad v. Dhansi Ram 1977 P.LJ. 530.

After hearing the learned counsel for the parties and having perused the impugned order, I am of the opinion that the impugned order dated 11.9.1997 cannot be sustained. As stated herein above all the defendants had filed a joint written statement and they were being represented through one counsel. It has not been disputed before me that the learned counsel who had been appearing on behalf of all the defendants including deceased Parminder Singh had cross-examined all the witnesses produced on behalf of the plaintiff and the evidence on behalf of the defendants has also been led. Under Order 22, Rule 10-A C.P.C., the contract between the pleader and the deceased party shall be deemed to subsist. As a matter of fact in the present case the learned counsel appearing on behalf of deceased Parminder Singh had even sought adjournment of the case on 9.6.1992 to enable him to file an appropriate application for bringing on record the LRs of deceased Parminder Singh but he chose not to file an application for a period of about five years. Since the relation between deceased Parminder Singh and the learned counsel continued to subsist even after the death of defendant Parminder Singh, the LRs of defendant Parminder Singh cannot now after a lapse of more than five years be allowed to cross-examine the witnesses produced by the plaintiff (which were 16 in number) nor the LRs can be allowed to examine their witnesses now as six Defendant witnesses have already been examined on behalf of the defendants by the learned counsel of the defendants who represented deceased Parminder Singh also. The decision of this Court in the case of Jagdish Parsad (supra) is not applicable to the facts of the present case as under Order 22 Rule 10-A C.P.C. was brought on the statute book w.e.f. 1.12.1977 and case of Jagdish Parsad pertains to the year 1975 and the said Order 22 Rule 10-A C.P.C. was not dealt with in that case.

For the reasons recorded herein above, the petition is allowed and the impugned order dated 11.9.1997 is hereby set aside. Parties are left to bear their own costs.