Thermo Cables (India) Ltd. vs U.P. Twiga Fibre Glass Limited
2011 Latest Caselaw 789 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No. 272/2001


%                                                   9th February, 2011

THERMO CABLES (INDIA) LTD.                                  ...... Appellant
                          Through:          Mr. Vivek Sharma, Advocate.


                          VERSUS


U.P. TWIGA FIBRE GLASS LIMITED                           ...... Respondent
                           Through:         None.

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

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)


1.            The challenge by means of the present Regular First Appeal

under Section 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.


2.            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

RFA No.272/01                                             Page 1 of 4
 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.


RFA No.272/01                                            Page 2 of 4
 3.            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.


4.            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.


5.            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
RFA No.272/01                                           Page 3 of 4
 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.




FEBRUARY 09, 2011                              VALMIKI J. MEHTA, J.

Ne