Rajasthan Explosives and Chemicals Limited vs Gopal Modi and Another

Narendra Kumar Jain, J.—Admit.

Heard learned Counsel for the parties. Plaintiff-respondent No. 1 filed a suit for recovery of a sum of Rs. 22,47,080/- against the defendant-petitioner in the trial court in 2004, wherein the plaintiff''s evidence was closed on 1st May, 2007, and the case was fixed for defendant''s evidence for 11th May, 2007. The defendant filed an affidavit of Sawai Singh on 21st May, 2007. The case was adjourned for 21st May, 2007 and on that date an application under Order 16 Rule 1 CPC was filed, which was allowed and the order was passed to summon three witnesses. The case was adjourned for 3rd July, 2007, then for 12th July, 2007 and 21st July, 2007, but no witness was examined on behalf of the defendants.

However, on 9th August, 2007 the statement of DW-1 Sawai Singh was recorded. The case was again fixed for defendant''s evidence on 5th September, 2007, 22nd September, 2007, 26th October, 2007, 15th November, 2007, 15th December, 2007, 25th January, 2008, 21st February, 2008, 24th March, 2008 and 15th April, 2008, but the defendant did not lead its evidence. The defendant moved an application that he will produce one more witness Shri R.K. Gupta at his own. The application was opposed by the plaintiff but the trial court allowed the same at the cost of Rs. 1000/-, and fixed the case for 3rd May, 2008. The defendant examined DW-2 Sohan Singh on 3rd May, 2008 and again moved an application that defendant wants to examine one more witness, therefore, the case be adjourned. The trial court rejected the application and closed the evidence of the defendant by observing that neither the name of the witness has been mentioned in the application nor any medical-certificate to prove that witness is ill has been filed along-with the application.

The said order is under challenge in this writ petition preferred on behalf of the defendant. The learned Counsel for the petitioner contended that his one witness was not well, therefore, the application was moved which should have been allowed by the trial court but the application was wrongly dismissed, therefore, one more opportunity may be granted to the defendant to produce his witness.

The learned Counsel for the respondent opposed the prayer of the learned Counsel for the petitioner contending that the case was fixed for defendant''s evidence way back on 11.05.2007 and more than 14 opportunities were granted for adducing its evidence. The trial court granted time to lead remaining evidence at the cost of Rs. 1000/- on 15th April, 2008 but only one witness was examined on 3rd May, 2008. He, therefore, contended that the trial court was fully justified in rejecting the application of the petitioner. He also contended that there is no illegality, perversity or jurisdictional error in the order passed by the trial court so as to interfere with the same.

I have considered the submissions of the learned Counsel for the parties and examined the impugned order dated 3rd May, 2008 and also the Photostat copy of the proceedings of the trial court from 1st May, 2007 to 3rd May, 2008 and, after considering the same, I find that more than 14 opportunities were granted to the defendant during the period from 11.05.2007 till 03.05.2008. The time was granted to the defendant on 15th April, 2008 with clear understanding that he will examine his witnesses at his own. The trial court also imposed cost of Rs. 1,000/- on the defendant while granting last opportunity. In these circumstances I find that the trial court was fully justified in rejecting the application of the defendant-petitioner and closing his evidence. There is no illegality, perversity or jurisdictional error in the impugned order so as to interfere with the same After passing the above order, the learned Counsel for the petitioner contended that he has also challenged the order dated 19th April, 2005 (Annexure-3) in this writ petition and contended that the same is illegal and liable to be quashed.

The learned Counsel for the respondent has raised a preliminary objection with regard to writ petition challenging the order dated 19.04.2005, that the order was passed way back on 19th April, 2005 whereas the present writ petition has been preferred before this Court on 23rd May, 2008 i.e. almost after a delay of three years, therefore, the writ petition is liable to be dismissed only on the ground of delay in filing the writ petition and further that in pursuance of order dated 19.04.2005 (Annexure-3), the proceedings of trial court continued and petitioner also participated in the proceedings, it examined its two witnesses, it submitted itself to the jurisdiction of the trial court therefore the petitioner is now estopped to challenge it. I have considered the submissions of learned Counsel for the parties and also examined the impugned order dated 19th April, 2005 and I do not find any error in it. The writ petition against this order is liable to be dismissed on merits as well as delay in filing the writ petition. It is also correct that the petitioner submitted himself to the jurisdiction of the trial court after passing of the order dated 19.04.2005 and participated in the proceedings for continuous three years therefore the petitioner is estopped to challenge the said order.

There is no merit in this writ petition and the same is accordingly dismissed with no order as to costs.

The suit was filed in March, 2004 and it has already been delayed, therefore, trial court is directed to decide the suit as early as possible but not later than one month. A copy of this order may be sent to the Additional District and Sessions Judge (Fast Track) No. 1, Dholpur.