Lally and Company and Another vs Karnail Singh

Vinod K. Sharma, J.—This regular second appeal is directed against the judgment and decree dated 17.11.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/appellants for recovery of Rs. 1,33,309.62, stands dismissed.

The plaintiff/appellants brought a suit on the pleadings that the plaintiff-firm was doing the business of commission agent wherein defendant used to sell his crops, and defendant used to take amount in advance from the plaintiff-firm.

The case set up by the plaintiffs was, that additional amount was paid to the defendant which was liable to be recovered along with interest. The amount claimed was Rs. 86,293.62 principal and Rs. 47,016/ - as interest.

In spite of lapse of 7� years and availing 17/18 opportunities, the plaintiffs failed to lead any evidence in support of the case. The evidence of plaintiffs, therefore, was ordered to be closed by order.

The suit filed by the plaintiffs was dismissed as it failed to lead any evidence in support of suit.

The plaintiffs preferred an appeal, which also met with the same fate.

The learned Counsel appearing on behalf of the appellants contends that this appeal raises the following substantial question of law:

Whether the plaintiff/appellants were entitled to one more opportunity as the evidence was not led due to the fault on the part of the counsel?

In support of the question of law framed, the learned Counsel for the appellants contends that the plaintiff/appellant was not informed about dates by its counsel, and, it was on that account that no evidence could be led, therefore, the plaintiff/appellant is entitled to one more opportunity to lead evidence. It is contended that the learned lower appellate Court should have remanded the case back to the learned trial Court by giving one opportunity to lead its entire evidence.

It is also the contention of the learned Counsel for the appellants that the learned Courts below wrongly held that the plaintiff/appellants failed to lead evidence for 7� years, whereas, in fact, defendant/respondent had delayed the filing of reply to the application for impleading of legal representatives on account of death of the partner, who initially filed the suit.

On consideration, I find no force in the contentions raised by the learned Counsel for the appellants. The point raised cannot be said to be substantial question of law, once it is not disputed that 17/18 opportunities were given to the plaintiff/appellants to lead evidence and no evidence was led for a period of 7� years. The counsel cannot be blamed, as it is not shown as to what steps were taken by the plaintiff/appellants to enquire about the case, for long period of 7� years.

No fault can be found with the order closing the evidence of the plaintiff/appellants, as admittedly no evidence was led after availing more than 17/18 opportunities.

The substantial question of law raised does not arise in this appeal.

Consequently, finding no merit in this appeal, it is ordered to be dismissed in limine.