Central Board Of Secondary ... vs Som Sudha Prakashan
2007 Latest Caselaw 870 Del

JUDGMENT

A.K. Sikri, J.

1. The appellant herein had filed the suit for recovery of Rs. 12,96,779/- against the respondent herein. The suit was filed in February, 1998. However, later on due to enhancement of pecuniary jurisdiction of the lower Court, the suit was transferred to the District Judge. Issues were framed by the learned ADJ, to whom the case was assigned, on 17.5.2004. As the plaintiff did not lead evidence thereafter in spite of various opportunities, on 24.2.2006 the evidence of the plaintiff was closed. The Counsel for the defendant stated that he also did not intend to lead any evidence as the plaintiff had failed to give evidence in support of its case. The matter was directed to be fixed for arguments on 4.3.2006. On that date, the appellant herein filed the application for recalling of the order dated 24.2.2006 whereby its evidence was closed. This application of the appellant was dismissed and the learned Trial Court pronounced the judgment. Vide impugned judgment and decree dated 4.3.2006, the suit of the appellant has been dismissed. Feeling aggrieved, the present appeal is filed.

2. Learned Counsel for the respondent has argued that the order of the learned Trial Court is self-speaking as it records that number of opportunities were given to the appellant after framing of the issues to lead the evidence. Not only the appellant failed to lead evidence, the suit was even dismissed in default on an earlier occasion i.e. on 18.3.2005. On the application of the appellant under Order 9 Rule 9, CPC, the suit was restored on 20.7.2005 but even thereafter the appellant failed to file affidavits of its witnesses. The Court was forced to give last opportunity but that also did not make the appellant wiser. In these circumstances no choice was left with the learned ADJ but to close the evidence and proceed to pronounce the judgment.

3. When the matter is looked into in the aforesaid manner suggested by the learned Counsel for the respondent, probably no fault would be found in the impugned order. However, the appellant has some explanation because of which case could not be prosecuted by the appellant with the due diligence that is normally expected. Keeping in view this explanation, we are of the opinion that the appellant is entitled to at least one further opportunity to lead the evidence.

4. It is explained by the learned Counsel for the appellant that the Counsel who was engaged by it and was prosecuting the case on behalf of the appellant was elevated to the Bench. This happened immediately after the issues were framed in the suit. In these circumstances, another Counsel, who was earlier associated with the appellant's Counsel appeared before the Trial Court on subsequent dates and asked for adjournments on the ground that the appellant was to engage another Counsel. This is so recorded in the order dated 11.1.2005 as well. It was because of these reasons the appellant could not lead the evidence on earlier occasions and also because the cause for dismissal of the suit in default on 18.3.2005. When the application for restoration of the suit was filed it was allowed and the suit was restored in view of the aforesaid circumstances as the order dated 20.7.2005 would reveal. This explains the proceedings up to the date of dismissal of the suit in default.

5. As the ill luck would have it, it is explained that thereafter the mother of the said Counsel fell sick during the January and February, 2006 and prevented the Counsel from attending to the Court regularly and he could not prepare the affidavits by way of evidence. The appellant is the Central Board of Secondary Education. It is, thus, explained that in so far as officials of the appellant are concerned, they were busy, since January, 2006, in the process of conducting the Board examinations for Classes X and XII and entrance exams for Medical and Engineering Courses, which are held during the period March and April. This appears to be the genuine plea. Judicial notice can be taken of the fact that the conduct of CBSE examination for Classes X and XII is a collosus exercise which keeps every officer of the CBSE on his tenterhooks during this period. This coupled with the fact that entrance examinations for Medical and Engineering Courses is also conducted by the CBSE in March and April every year which again involves substantial preparation and involvement of the officials, if the officials could not get in touch with the Counsel for preparation of the affidavits that would be a justifiable circumstance in the facts of this case. The record shows that the relevant orders giving last opportunity to the plaintiff to file the affidavits of the witnesses and closing the evidence etc. were passed during the months of January and March, 2006 by the learned Trial Court.

6. Having regard to these circumstances, we are of the opinion, as earlier observed, that the appellant is entitled to at least one more opportunity to lead evidence. We may also note at this stage that the suit for recovery is filed on the ground that the appellant had given to the respondent herein exclusive license for printing, publishing and selling of its past years question papers vide agreement dated 2.7.1991. The respondent was required to pay 25% of the printed price of the question papers sold by the respondent to the appellant. Though the merit of this case is yet to be adjudicated, what can be remarked is that if what is stated by the appellant is correct, it is the public money which is involved and that is yet another reason in support of order.

7. At the same time, the respondent can be compensated in terms of money for the inconvenience caused to it because of prolonged proceedings.

8. The impugned judgment and decree dated 4.3.2006 is set aside. The application of the appellant for recall of the order dated 24.2.2006 is allowed, subject to cost of Rs. 10,000/- in addition to cost of Rs. 3,000/- already awarded by the learned ADJ. The matter is remanded back to the learned Trial Court. The parties shall appear before the learned Trial Court on 28th May, 2007. On that date the appellant shall file the affidavits of its witnesses and pay the costs. It is made clear that no further opportunity for this purpose shall be granted. It would be for the Trial Court, then, to fix a date for cross-examination of the appellant's witnesses and whatever date is fixed by the learned Trial Court for this purpose, the appellant shall ensure that its witnesses are present on that date for their cross-examination.

9. The Trial Court record be sent back immediately.