M/s. Winston Formulations vs M/s. Copmed Pharmaceuticals Pvt. Ltd.

Tarlok Singh Chauhan, J.—This petition has been preferred, under Article 227 of the Constitution of India for quashing the order dated 4.2.2014 passed by the learned Civil Judge (Senior Division), Court No. 1, Paonta Sahib, District Sirmour in case bearing No. 58/1 of 2009/08, whereby he closed the evidence of the defendant.

From the order sheets annexed with the record, it appears that petitioner was granted opportunity to lead its evidence for the first time vide order dated 19.8.2013 whereby the defendant was required to produce its evidence on 4.10.2013. On 4.10.2013, admittedly, no witness was present nor any steps were taken to have them served and therefore, the case was adjourned to 8.12.2013 and the defendant was directed to take steps within a week.

It appears that next date i.e. 8.12.2013 had been mistakenly fixed by the learned court below, since it happened to be a holiday. The case was taken up on the next working day i.e. 9.12.2013 when obviously no evidence could have been present. Accordingly, the case was fixed for recording the evidence of defendant''s witnesses on 18.1.2014. On 18.1.2014, it transpires that no witness was present nor steps were taken in this regard and as a matter of last opportunity and on self responsibility the defendant was directed to produce its evidence on 4.2.2014 subject to cost of Rs. 300/-.

In terms of aforesaid order, the case was listed before the learned trial court on 4.2.2014 on which date again no witness on behalf of the defendant was present and accordingly, right of defendant to lead evidence was closed by the order of the court.

No doubt, the petitioner-defendant has been granted sufficient opportunities to lead its evidence.

However, I feel that a last and final opportunity ought to have been granted to the petitioner-defendant to lead its evidence, because the judiciary is respected not on account of its power to legalize injustice on technical grounds but because of its capable of removing injustice and is expected to do so. Moreover, it is settled law that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done. (See: Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, .

This court is not unmindful of the fact that plaintiff-respondent has been dragged into unwarranted and otherwise avoidable litigation but at the same time the respondent can definitely be compensated for the same.

Therefore, taking into consideration the entire facts and circumstances of the case, the order dated 4.2.2014 passed by the learned Civil Judge (Senior Division), Court No. 1, Paonta Sahib, District Sirmour in case bearing No. 58/1 of 2009/08 is set-aside. However, this would be subject to costs of Rs. 10,000/-, which shall be paid on or before the next date of hearing before the learned trial court, which is fixed as 2.6.2014. The learned trial court on this date would fix a date for recording the evidence of the defendant''s witnesses, who shall be brought by the defendant at its own responsibility. It is made clear that no opportunity would be granted to the defendant to lead its evidence.

Accordingly, subject to aforesaid conditions, the petition is allowed in the aforesaid terms. Pending application, if any, also stands disposed of.