M/S Talupula Engineering Co. ... vs Shri Rajiv Dua

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.162/2012

%                                                             May 15, 2012

M/S TALUPULA ENGINEERING CO. (TEC)          ...... Appellant
                  Through: Mr. Vaibhav Gaggar with
                           Mr. J.C.Sharma &
                           Ms. Garima Malhotra, Advs.

                            VERSUS

SHRI RAJIV DUA                                                ...... Respondent
                            Through:     Mr. J.C.Seth, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

RFA No.162/2012

1.             This Regular First Appeal impugns the judgment of the trial

Court dated 15.2.2012 decreeing the suit for recovery of ` 7,35,625/- filed by

the respondent/plaintiff. The suit has been decreed for a sum of `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.




RFA No.162/2012                                                       Page 1 of 5
 2.           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.

3.           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 under Section 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.

4.           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.

5.           Vide order dated 20.8.2010 after the evidence of the

respondent/plaintiff was closed, the case was fixed for appellant's/defendant's
RFA No.162/2012                                                      Page 2 of 5
 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

` 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.

6.             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 Code of Civil Procedure (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
RFA No.162/2012                                                      Page 3 of 5
 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.

7.           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 `10,000/-, and which amount will be in addition to the

costs of ` 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.

8.           The appeal is accordingly allowed by setting aside of the

impugned judgment and remanding the suit to the trial Court for leading of


RFA No.162/2012                                                  Page 4 of 5
 appellant's/defendant's evidence. Trial Court will thereafter dispose of the

suit in accordance with law.

9.          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.




MAY 15, 2012                                  VALMIKI J. MEHTA, J.

ak/ib RFA No.162/2012 Page 5 of 5