Nitika Gupta v. Sudha Gupta

1. The Petitioner (Respondent before the Trial Court) challenges the impugned order dated 18th October, 2019 by which the right of the cross examination of PW[3] has been closed. The said order reads as under:- “Ld. Proxy counsel appearing on behalf of respondent submits that respondent is in JC, however, no details has been provided qua the case under which respondent is in JC. It is further submitted that main counsel is stated to be busy in attending some matter in Hon'ble High Court of Patna, so he is ready to crossexamine PW-3. I have heard the submissions made and after perusal of the record, it reveals that today was the last and final opportunity granted to the respondent for crossexamining PW-3, however, neither the cost has been paid nor the main counsel is present for crossexamining the PW-3. The proxy counsel appearing, today has not been authorized by the main counsel or the respondent himself to cross-examine the witness PW-3, so he cannot be allowed to cross-examine the 2019:DHC:6110 witness. Today being the last and final opportunity granted to the respondent for cross-examining the petitioner's witness and the matter pertains to senior citizen, no further adjournment can be granted for the said purpose. Accordingly, opportunity stands closed. Ld. Counsel for petitioner submits that no other witness is require to be examined, PE stands closed accordingly. Put up for RE on 16.11.2019. Copy of evidence by way of affidavit on behalf of respondent be filed with copy in advance supplied to the other side 10 days prior to NDOH.”

2. A perusal of the same shows that the ld. ACJ did not permit the junior counsel appearing from the chambers of the filing counsel to cross examine the witness - PW[3] on the ground that he was not authorised. This would be contrary to the recent judgement of this Court in Veena Gupta versus Bajaj Allianz Life Insurance Co. Limited, CM(M) 1555/2019 Decided on 30th October, 2019, wherein it has been clearly held that if junior counsels are ready to cross-examine the witnesses and to argue the matter, so long as they are from the same filing counsel’s office they ought to be permitted to appear and to conduct the proceedings. The relevant portion of the said judgement reads as under:-

3. The impugned order clearly records that Shri. Goswami, ld. counsel who appeared on the said date before the ld. ACJ was ready to cross examine PW-3. If that was the position, there is no reason why the ld. ACJ should not have allowed the said junior counsel to cross examine the witness. Accordingly, the impugned order, is set aside to the extent it did not permit cross examination. The cross-examination of PW[3] shall now be conducted on the next date before the ld. Trial Court prior to commencing the RE. Today’s order to be communicated to the ld. ACJ’s Court, so that the counsel for the Respondent (Petitioner before the Trial Court) is duly informed in order to ensure that PW[3] is present on the next date for cross examination. List for directions before the ld. ACJ on 3rd December, 2019.

4. The petition with all pending applications is disposed of. Registry to communicate this order to the Court of the ACJ (West), Tis Hazari Courts, Delhi hearing Sudha Gupta v State, SC No. 103/2016.

PRATHIBA M. SINGH JUDGE NOVEMBER 19, 2019 MR