M/S St. Ives Laboratories Inc. Usa vs M/S Aarohi
2011 Latest Caselaw 308 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                O.A. No. 12/2011 in CS(OS) NO. 1384/2007



                                      Date of Decision : 19.01.2011

M/s St. Ives Laboratories Inc. USA ......     Plaintiff/Appellant
                           Through: Mr.K.G.Bansal, Adv.


                                  Versus

M/s Aarohi                         ...... Defendant/Respondent
                              Through: Ms. Ekta, Adv.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.   Whether Reporters of local papers may be
     allowed to see the judgment?                         NO
2.   To be referred to the Reporter or not ?              NO
3.   Whether the judgment should be reported
     in the Digest ?                                      NO

V.K. SHALI, J.

O.A No. 12/2011 and IA No. 691/2011

1. This is an appeal under Chapter II Rule 4 of the Delhi High Court

(Original Side) Rules, 1967 read with Section 151 CPC against the

order dated 6.12.2010 passed by the learned Joint Registrar. It is

accompanied by an application bearing No.691/2011 under

Section 5 of the Limitation Act seeking condonation of delay of 14

days in filing the appeal.

2. I have heard the learned counsel for the plaintiff/appellant and perused the averments made in the application. For the reasons

mentioned in the application, the delay of 14 days in filing the

appeal is condoned.

3. The appeal has been filed by the appellant against the order of the

Joint Registrar dated 06.12.2010.

4. By virtue of the said order, the evidence of the appellant/plaintiff

has been closed. It is the contention of the learned counsel for the

appellant/plaintiff that the evidence of the appellant /plaintiff was

closed by the learned Joint Registrar erroneously without recording

the statement of PW-2 who was present on that date. He

contended that the learned Joint Registrar had stated that as the

witness does not have in his possession the authority letter or the

resolution issued by the plaintiff company stating that he was duly

authorized to testify on behalf of the plaintiff, therefore, his

examination could not be recorded. Accordingly, his evidence was

closed.

5. It has been urged by the learned counsel for the appellant/plaintiff

that the resolution/authority letter of the appellant company,

authorizing PW-2 to testify as a witness on behalf of appellant was

filed along with his affidavit way back on 13.01.2010, therefore,

this observation of the learned Joint Registrar is not in consonance

with the record. Alternatively, it was contended that even if it is

assumed that there was no proper authorization, still the statement of PW-2 who was present ought to have been recorded

as his affidavit was already on record. The question as to whether

he could testify or not for want of authority is a question of

appreciation of evidence which was to be decided by the Court at

the stage of final disposal of the case.

6. The learned counsel for the defendant/respondent had sought time

to obtain instructions and it has been contended that they are

opposing the appeal though no grounds for opposition were

furnished. In any case, it was stated that in case the Court allows

the appeal, the appellant may be put to terms.

7. I have heard the learned counsel for the parties and perused the

record.

8. I feel that there is some merit in the contention of the learned

counsel for the plaintiff /appellant that the learned Joint Registrar

ought not to have closed the evidence without permitting the PW-2

to tender his affidavit by way of evidence and further giving an

opportunity to the defendant /respondent to cross examine the

witness. This is on account of fact that the affidavit of the witness

was already on record and there was a resolution annexed to the

affidavit which authorized him to testify on behalf of the plaintiff

company. It was essentially for the defendant to cross examine

the said witness and bring about any infirmity in his testimony, with regard to his competence or demolish the credibility of his

testimony by cross examination. The Court at an appropriate

stage would have appreciated and assessed the testimony of the

said witness and handed down a finding as to whether his

testimony could be accepted in support of the appellant/plaintiff's

case or not. But simply closing the evidence of the plaintiff

without recording the statement of his witness would not be in

consonance with law because his witness was present and this

order of the learned Joint Registrar has caused prejudice to the

plaintiff. I feel that the order which has been passed by the

learned Joint Registrar is not sustainable in the eyes of law.

9. I, accordingly, set aside the order of the learned Joint Registrar

dated 06.12.2010 and direct the learned Joint Registrar to record

the testimony of PW-2. The appeal is allowed. Parties to bear

their own cost.

10. List before the learned Joint Registrar on 27.1.2011.

V.K. SHALI,J JANUARY 19, 2011 KP