India Spinners And Processors And ... vs Unity Prakashan Pvt. Ltd.
2006 Latest Caselaw 1425 Del

JUDGMENT

S.L. Bhayana, J.

1. This is an appeal arising out of the order of the Additional District & Sessions Judge dated 1st July 2003, wherein the learned ADJ has dismissed the suit of the appellants. The brief facts of the case of the plaintiff are that the plaintiff is a proprietorship firm and Mr. Arun Jain is the proprietor who is fully competent to file, sign and verify the pleadings. The plaintiff is running a business of hosiery goods. They are also dealing in Stretch Nylon Yarn, Fabrics etc. under the name and style of M/s. India Spinners & Processors.

2. The plaintiff had been supplying goods to the defendants from time to time against bills which were raised by the plaintiff. The plaintiff used to maintain books of accounts in respect of the goods supplied to the defendants. The defendants purchased goods from the plaintiff against invoices. They also made part payment against those invoices raised by the plaintiff but did not make the entire payment against all the invoices. As per the case of the plaintiff, the plaintiff supplied goods w.e.f 1st April, 1999 to 31st March, 2003 against which a sum of Rs. 3,41,435/- is outstanding against the defendants and the defendants have not paid this amount to the plaintiff. The plaintiff has made several requests to the defendants to make this payment, but all in vain. The defendants have failed to make the payment of Rs. 3,41,435/-. The plaintiff also issued a notice dated 25th January, 2000 asking the defendants to make the payment but despite the service of notice the defendants have failed to make the payment and the plaintiff ultimately filed this suit which has been dismissed by the learned Additional District Judge vide the impugned order. The defendants were proceeded ex-parte as they failed to appear in the Court despite service of summons by way of publication.

3. We have heard the arguments at length advanced by the learned Counsel for the appellants and have perused the record carefully. Learned Counsel for the appellants has stated that the learned trial court has erred in closing the evidence of the plaintiff and dismissing the suit on 1st July, 2003. Learned Counsel for the appellants has drawn out attention to the order dated 8th April, 2003 on which date the defendants were proceeded ex-parte and the case was adjourned to 6th May, 2003 for P.E. On 6th May, 2003 an application was made before the court for adjournment by the counsel for the plaintiff and the case was adjourned to 1st July, 2003 for P.E. On 1st July, 2003 also no witness was present on behalf of the plaintiff and an application was moved for adjournment. The same was dismissed by the learned trial court. The learned trial court also closed the evidence of the plaintiff and pronounced the judgment on the same day dismissing the suit of the plaintiff. The learned Counsel for the plaintiff further submitted that the learned trial court has passed a very harsh order on 1st July, 2003 by closing the evidence of the plaintiff and dismissing the suit of the plaintiff. He has submitted that the impugned order dated 1st July, 2003 may kindly be set aside and the plaintiff may be given an opportunity to lead the evidence in the interest of justice.

4. Arguments heard.

5. We have gone through the order dated 8th April, 2003. On this date the defendants were proceeded ex-parte and the case was adjourned for ex-parte evidence of the plaintiff on 6th May, 2003. On 6th May, 2003 the plaintiff was not present in the Court and an application in this regard was moved by the learned Counsel for the plaintiff for adjournment which was allowed. The case was adjourned for ex-parte evidence to 1st July, 2003. On 1st July, 2003 neither the plaintiff nor the Advocate was present before the trial court. An application for exemption and adjournment on behalf of the plaintiff was moved. The same was declined and the learned trial court closed the evidence of the plaintiff and dismissed the suit of the plaintiff.

6. After going through these orders dated 06.05.2003 and 01.07.2003, we feel that the learned trial court has acted very hastily in closing the evidence of the plaintiff. The learned trial court has passed a very harsh order dated 1st July, 2003 by closing the evidence of the plaintiff and by dismissing the suit of the plaintiff. In our opinion the ends of justice will be served if the plaintiff is given two more opportunities to produce the entire evidence before the learned trial court. We, therefore, set aside the impugned order dated 1st July, 2003 and remand the suit to the trial court for trial and disposal afresh giving an opportunity to the plaintiff to produce the entire evidence on two dates to be fixed by it. If the appellant fails to produce his entire evidence on two dates, the learned trial court will be free to deal with the matter in accordance with law.

7. The parties are directed to appear before the learned trial court on 4th October, 2006. No costs. Trial court record be sent back immediately.