Thermo Cables (India) Ltd. vs U.P. Twiga Fibre Glass Limited

Valmiki J Mehta, J.—The challenge by means of the present Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 12.2.2001 whereby the suit of recovery of the plaintiff was decreed against the Appellant/Defendant by closing the evidence of the Appellant/Defendant vide order dated 10.1.2001 and which was the very first date which was fixed for evidence of the Appellant/Defendant.

I may note that the issues in this case were framed on 5.11.1996 by the trial Court and whereafter case was fixed for 29.1.1997 for the plaintiff evidence. On 29.1.1997 no evidence was presented on behalf of the plaintiff and the case was adjourned for plaintiff evidence to 21.4.1997. On 21.4.1997, no evidence for the plaintiff was recorded and again the case was adjourned for plaintiff evidence to 19.8.1997. On 19.8.1997 once again no evidence of the plaintiff was recorded and the case was adjourned to 16.10.1997 and since 16.10.1997 was declared a holiday the case came up on 17.10.1997 when the case was adjourned for plaintiff evidence to 12.1.1998. Thereafter the case has been repeatedly adjourned for plaintiff evidence on different dates of hearing and the evidence was partly recorded on one date and partly recorded on other dates. The plaintiff evidence was finally completed and closed on 31.10.2000 i.e. after about ten hearings from 12.1.1998. The aforesaid facts show that the plaintiff was given at least one dozen opportunities to lead its evidence but the Appellant/Defendant was meted out with different treatment because on the very first date evidence of the Defendant was closed because the Defendant could not appear due to a wrong noting of date in the dairy. The Clerk of the counsel for the Appellant had wrongly noted the date as 10.2.2001 instead of 10.1.2001 and therefore the counsel for the Appellant could not appear on 10.1.2001. Counsel for the Appellant states that the Appellant filed an application for setting aside the exparte proceedings immediately on coming to know of the exparte order on 10.1.2001, however, the trial Court refused to entertain the application showing the case was already fixed for judgment and which judgment was pronounced on 12.2.2001.

I find that there is good and sufficient cause for the Appellant/Defendant to be not present on 10.1.2001. The application for setting aside the exparte proceedings was duly supported by the affidavit of not only the authorized representative of the Appellant/Defendant but also of the Clerk of the counsel and both of which affidavits are attested on 12.2.2001. The counsel for the Appellant has shown me this original application and I direct him to file the photocopy of the same on record because in the appeal paper book only typed copy of this appears as Annexure A2. The photocopy of the application be filed during the course of the day.

I may note that all interim orders passed in a suit if not appealable under Order 43 of Code of Civil Procedure, 1908 (CPC) can be challenged in the appeal against the final judgment and decree by virtue of Section 105 of the CPC and thus the order dated 10.1.2001 can be challenged by means of the present appeal.

I therefore accept the appeal and set aside the impugned judgment and decree as the Appellant had made out sufficient cause for non-appearance on 10.1.2001. The case is remanded back to the trial Court for being take up at the stage of the Defendant''s evidence and whereafter the same will be disposed of in accordance with law. Appellant to appear before the District & Sessions Judge on 7.3.2011 and on which date the District & Sessions Judge will mark the case to an appropriate Court for disposal in accordance with law. The Court to which the suit is marked will also issue notice to the plaintiff/Respondent for appearance in the suit because the Respondent/plaintiff has remained unrepresented at the time of disposal of the appeal. The Appellant has deposited a sum of Rs. 1,66,000/- being the principal amount in this Court. This amount will continue to remain deposited in this Court and will be subject to the final outcome of the suit. Trial Court record be sent back.