Khushal Singh vs Gurdev Singh and Others

V.K. Sharma, J.—The undisputed facts are that in a suit for grant of a decree for perpetual prohibitory injunction simpliciter, the Petitioner herein as the Plaintiff besides himself had cited another witness by name Shri Khurshad Ali, whose affidavit in evidence was also filed. However, at the time of evidence the said Khurshad Ali could not be produced by the Plaintiff. It was stated that the witness has since been won-over by the Defendants who are Respondents before this Court.

It was in the foregoing background that a prayer was made by the Plaintiff to the learned trial court that instead of the said Shri Khurshad Ali one Gurbakash Singh may be permitted to be examined as a witness and permission to file his affidavit in evidence may be granted. However, the prayer did not find favour with the learned trial court as the same was opposed on behalf of the Defendants for the reasons that on the one hand there are no materials to suggest that the said Shri Khurshad Ali has been won-over and on the other the prayer for introducing the additional witness in evidence was made at a highly belated stage.

In the first instance, ideal situation would have been that the said Shri Khurshad Ali should have been subjected to the process of the court and if during cross-examination on behalf of the Defendants it was found that he has in fact been won-over by the other party, it was always open to the Plaintiffs to pray to the court to permit him to subject the witness to cross-examination. However, instead of doing so, the Plaintiff chose to introduce another witness instead namely Shri Gurbaksh Singh. I am very clear in my mind that the right to choose a witness is inherent in the party who calls such witness. In such situation, I am more than clear that in case the prayer of the Plaintiff is granted, the same is not going to cause any grave prejudice to the Defendants, who can always be compensated by way of costs. Furthermore, keeping in view the very nature of the suit it shall not be unsafe to grant the prayer of the Plaintiff.

In view of the above, the petition is allowed. Consequently, the Plaintiff is permitted to examine the aforesaid Shri Gurbaksh Singh, as a witness. It is stated that affidavit in evidence of the witness has already been filed alongwith the application, moved before the learned trial court, which is on its record. It being so, the witness, Shri Gurbaksh Singh, shall be produced by the Plaintiff before the learned trial court for cross-examination by the Defendants on 7th April, 2010, on self responsibility. It goes without saying that Defendants who are yet to commence their evidence shall get an opportunity to cross-examine the witness, Shri Gurbaksh Singh and thus shall have the right to rebut his evidence by way of the evidence to be adduced by them. However, the Plaintiff shall compensate the Defendants by way of costs of Rs. 500/- to be tendered before the learned trial court on the day witness Shri Gurbaksh Singh is to be examined.

The petition stands disposed of in the above terms. The trial court record be returned alongwith a copy of this judgment.

In view of disposal of the main petition, pending CMP, if any, shall also stand disposed of as infructuous.