Madras High Court
M/S.Kiwik Patch Limited vs Dinesh Kr.Dargar on 3 September, 2021
C.R.P.(PD)Nos.737 to 739 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)Nos.737 to 739 of 2017
and C.M.P.No.3643 of 2017
M/s.Kiwik Patch Limited
Represented by its Chief Financial
Officer/Authorised Signatory
Mr.NDV Karthikeyan
B5, Thiru.Vi.Ka.Industrial Estate
Guindy, Chennai-600 032. .. Petitioner
in all the three CRPs.
Vs.
Dinesh Kr.Dargar
Proprietor
Maheswari Trading Company
Muralidhar Rathi Lane
Muchipara P.O.
Purulia-723 101. .. Respondent
in all the three CRPs.
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C.R.P.(PD)Nos.737 to 739 of 2017
COMMON PRAYER: Civil Revision Petitions filed under Article 227
of the Constitution of India, against the fair and decretal order dated
23.12.2016 made in I.A.Nos.10266 to 10268 of 2016 in O.S.No.295 of
2014 on the file of the XIII Assistant Judge, City Civil Court, Chennai.
In all CRPs.
For Petitioner : Mr.K.K.Murralitharan
For Respondent : Mr.S.C.Shah
for M/s.Shah and Shah
COMMON ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
Civil Revision Petitions are filed against the fair and decretal order
dated 23.12.2016 made in I.A.Nos.10266 to 10268 of 2016 in
O.S.No.295 of 2014 on the file of the XIII Assistant Judge, City Civil
Court, Chennai.
2.The petitioner is plaintiff and respondent is defendant in
O.S.No.295 of 2014 on the file of the XIII Assistant Judge, City Civil
Court, Chennai. The petitioner filed the said suit for recovery of money.
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C.R.P.(PD)Nos.737 to 739 of 2017
The respondent filed written statement and is contesting the suit. The
petitioner let in evidence and closed his side. The respondent filed proof
affidavit as D.W.1 and subsequently, he did not appear for
cross-examination. The learned Judge closed the evidence of respondent
and posted the case on 14.07.2016 for judgment. At that stage, the
respondent filed three applications in I.A.Nos.10266 to 10268 of 2016 to
re-open, re-call D.W.1 and defer judgment in O.S.No.295 of 2014.
3.According to the respondent, the suit was adjourned to
07.06.2016. But his counsel mistakenly noted the date of hearing as
17.06.2016. In view of the same, there was no representation for the
respondent on 07.06.2016 and 13.06.2016 to 22.06.2016. He was
suffering from illness, met his Advocate only on 11.07.2016, then filed
applications and prayed for allowing the I.As.
4.The petitioner filed counter affidavit and resisted the same.
According to the petitioner, on earlier four or five occasions, at the
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C.R.P.(PD)Nos.737 to 739 of 2017
request of the respondent, the very same relief was granted and only to
drag on the proceedings, the respondent did not appear and has come out
with present applications. The common affidavit filed in support of the
applications is filed by one Ketan R.Gandhi, who is alleged to be an
authorised representative of the respondent. He has not filed any Power
of Attorney and the applications filed by a stranger to the suit are not
maintainable and prayed for dismissal of the said applications.
5.The learned Judge held that D.W.1 is not cross-examined and
even though the reason given by the respondent is not sufficient, in order
to give opportunity to the respondent in the interest of justice, allowed all
the three I.As. imposing cost of Rs.500/-.
6.Against the said fair and decretal order dated 23.12.2016 made in
I.A.Nos.10266 to 10268 of 2016 in O.S.No.295 of 2014, the petitioner
has come out with the present three Civil Revision Petitions.
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C.R.P.(PD)Nos.737 to 739 of 2017
7.The learned counsel appearing for the petitioner reiterated the
averments made in the counter affidavit and contended that the learned
Judge failed to consider the preliminary objection that the applications
filed by the stranger are not maintainable. The learned Judge also failed
to see that on earlier occasions also, the respondent was given
opportunity to put forth his case. The learned Judge having held that
reason given by the respondent is not sufficient, ought to have dismissed
the applications. The learned Judge failed to see that this is the second
time the respondent has come out with the present I.As., when the suit
was posted for judgment and prayed for allowing the Civil Revision
Petitions.
8.The learned counsel appearing for the respondent contended that
as per the order of the learned Judge, the respondent has paid cost and
counsel for the petitioner has also received the same. Having received
the cost as recorded by the learned Judge, the present Civil Revision
Petitions are not maintainable and prayed for dismissal of the Civil
Revision Petitions.
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C.R.P.(PD)Nos.737 to 739 of 2017
9.Heard the learned counsel appearing for the petitioner as well as
the learned counsel appearing for the respondent and perused the entire
materials on record.
10.From the materials available on record, it is seen that the
respondent filed the present applications, when the suit was posted for
judgment. The reason given by the respondent is that his counsel wrongly
noted down the date of hearing as 17.06.2016 instead of 07.06.2016. The
suit was called on 07.06.2016, 13.06.2016, 22.06.2016 and thereafter
only the suit was posted for judgment. The respondent has not given any
reasons for his counsel or representative not attending the Court, when
the case was called on 07.06.2016, the alleged date of hearing on
17.06.2016 and for not verifying the Court records to find out the next
date of hearing. He did not appear on 22.06.2016. The learned Judge
considering the above averments, held that the reason given by the
respondent is not sufficient, but allowed the applications in order to give
opportunity to the respondent to proceed his case on merits. The learned
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C.R.P.(PD)Nos.737 to 739 of 2017
Judge allowed all the three I.As. on payment of cost of Rs.500/- to give
opportunity to the respondent to be present himself for cross-
examination. The cost awarded by the learned Judge is too meagre.
11.Considering the fact that the respondent as D.W.1 is yet to be
cross-examined, the order of the learned Judge giving opportunity to the
respondent is in the interest of justice and at the same time, it is to be
noted that the cost awarded by the learned Judge is too meagre and also
considering the materials in its entirety, a sum of Rs.10,000/- (Rupees
Ten thousand only) is awarded as cost for allowing all the three I.As. in
addition to Rs.500/- imposed by the learned Judge. The respondent is
directed to pay Rs.10,000/- as cost to the counsel for the petitioner
Mr.K.K.Murralitharan, within a period of two weeks from the date of
receipt of a copy of this order. On such payment, the impugned order of
the learned Judge will be confirmed. If the respondent fails to pay the
cost of Rs.10,000/- within the time limit granted by this Court, the
impugned order of the learned Judge will be automatically set aside.
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C.R.P.(PD)Nos.737 to 739 of 2017
12.The learned counsel for the petitioner submitted that the suit is
of the year 2014 and it was posted for cross-examination of D.W.1. In
view of the same, the learned Judge is directed to dispose of the suit as
expeditiously as possible, in any event, not later than six months.
13.With the above directions, all the three Civil Revision Petitions
stand disposed of. No costs. Consequently, connected Miscellaneous
Petition is closed.
03.09.2021
kj
To
XIII Assistant Judge
City Civil Court
Chennai.
https://www.mhc.tn.gov.in/judis/
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)Nos.737 to 739 of 2017
V.M.VELUMANI, J.
kj
C.R.P.(PD)Nos.737 to 739 of 2017
and C.M.P.No.3643 of 2017
03.09.2021
https://www.mhc.tn.gov.in/judis/
https://www.mhc.tn.gov.in/judis/
