Jay Shree Enterprises vs Brij Mohan Gupta

Heard over this M.A. No. 41 of 2023 moved under Order 9 Rule 9 of CPC read with Rule 12 of TDSAT Procedure 2005 with a prayer for recalling order dated 17.1.2023, whereby petition was dismissed for want of prosecution, in defualt of petitioner.  The ground for default has been elaborated in the affidavit filed in support of this application.

This is vehemently opposed by counsel for respondent, particularly, with this contention that an application Order 9 Rule 7 was decided with a cost of Rs. 50,000/- against respondent vide order dated 6.3.2020 and this cost be compensated, if the application is being allowed.

No written counter is being claimed to be filed over this application.

Heard learned counsel for both sides and gone through the impugned order. It is apparent that on previous date, learned counsel for both sides were present and both sides were given an opportunity to file the written arguments, after exchange in between and a date 17.1.2023 was fixed for final arguments  but none complied the same i.e. written submissions by either side was not filed. Rather, petitioner failed to appear on the above date resulting in dismissal of petition, for want of prosecution.  The ground for inability to appear on the above date has been said on uncontroverted affidavit. It seems to be genuine and sufficient. Making a decision after hearing both sides, is the grand norm of natural justice.

Under above pretext, the application merits to be allowed. So far as cost is concerned,  the previous impostition of cost of Rs. 50000/- was in a situation when exparte evidence was taken and exparte argument was being heard, when application for recalling exparte order was moved.  The present situation is not like that, but the cost of Rs. 10000/- is adequate and proper.

This application is being allowed on cost of Rs. 10000/- to be paid by the petitioner to the respondent.   This cost is to be paid within accepted seven days.

Office to restore BP No. 496 of 2018 at its original number.

List for 'final arguments' on 25.4.2023.

However,  both sides may file their written arguments, after exchange in between, within four weeks.