M/s Talupula Engineering Co. (TEC) vs Shri Rajiv Dua

Valmiki J Mehta, J.

RFA No. 162/2012

This Regular First Appeal impugns the judgment of the trial Court dated 15.2.2012 decreeing the suit for recovery of Rs. 7,35,625/- filed by the respondent/plaintiff. The suit has been decreed for a sum of Rs. 5,50,000/- alongwith interest at the rate of 8% per annum w.e.f. 1.6.2003 till the date of decree and thereafter at 6% per annum. The suit has been decreed as the appellant led no evidence. The trial Court record however shows that the suit otherwise has been very earnestly contested by the appellant throughout.

Learned counsel for the appellant states that the appellant/defendant be given opportunity to lead evidence, and for which, though, the application has been filed under Order 41 Rule 27 CPC, however, such application be in fact treated as a ground/application u/s 105 (1) CPC inasmuch as in the present case, only two opportunities were given for the appellant/defendant to lead evidence, that too within a short period of time of 21 days. It is argued that the first effective date for appellant''s/defendant''s evidence was fixed for 9.1.2012 and on which date, the case was adjourned to 31.1.2012, when the evidence was closed.

The trial Court record shows that the evidence of the plaintiff was completed on 20.8.2010 after issues were framed on 2.2.2006. There have been adjournments on account of both the parties during the leading of evidence of the respondent/plaintiff, and within which period, case was also sent for mediation, but which failed.

Vide order dated 20.8.2010 after the evidence of the respondent/plaintiff was closed, the case was fixed for appellant''s/defendant''s evidence on 16.12.2010. On 16.12.2010, the Presiding Officer was on leave and case was adjourned to 28.02.2011. Even on 28.2.2011, the Presiding Officer was on leave. The suit was thereafter transferred to another Court and when the case was fixed on 19.9.2011, the learned Presiding Officer of this successor Court was on leave. The case was therefore, effectively fixed for the first time for appellant''s/defendant''s evidence on 9.1.2012, and on which date on account of not leading of evidence, the case was adjourned to 31.1.2012 for appellant''s/defendant''s evidence subject to payment of costs of Rs. 2000/- . On 31.1.2012 i.e about 21 days after 9.1.2012, the evidence was closed as the appellant/defendant had not appeared and was not in contact with his counsel.

The aforesaid facts show that there is some amount of mis-communication between the counsel for the appellant/defendant and the appellant/defendant. However, the CPC (CPC) is a handmaid of justice. Ordinarily, adverse orders closing evidence are not passed unless the opposite side cannot be compensated by costs. In the present case, considering the facts as stated above which show that basically only two opportunities were granted to the appellant/defendant, that too in a space of just 21 days, I find it a fit case to allow the appeal by setting aside of the order dated 31.1.2012 of the trial Court closing the evidence of the appellant/defendant. Considering the fact that substantial stakes are involved and therefore the appellant/defendant should not be prejudiced because there was miscommunication between it and its lawyer, the principles of equity, justice and good conscience requires opportunity be granted to the appellant/defendant to lead evidence.

Accordingly, the impugned judgment dated 15.2.2012 is set aside by allowing the appellant/defendant exactly two opportunities to complete its evidence. Since the respondent/plaintiff has been put to inconvenience because of the appellant/defendant not leading evidence, the appellant/defendant is allowed two opportunities to lead evidence, subject to payment of costs of Rs. 10,000/- , and which amount will be in addition to the costs of Rs. 2000/- imposed by the trial Court vide its order dated 9.1.2012. Costs be positively paid within a period of four weeks from today and which costs can be tendered to the respondent through the counsel appearing in the appeal.

The appeal is accordingly allowed by setting aside of the impugned judgment and remanding the suit to the trial Court for leading of appellant''s/defendant''s evidence. Trial Court will thereafter dispose of the suit in accordance with law. Parties to appear before the District & Sessions Judge, Delhi on 24th July, 2012, and on which date, the District & Sessions Judge, Delhi will mark the suit for disposal to a competent Court. Trial Court record be sent back.

CM No. 5926/2012 (for stay)

No orders are required to be passed in this application as the appeal has been disposed of.

Application stands disposed of.