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Southern Export Corporation A. Rajagopalan v/s Vijayseema Garments And Hosiery Private Limited

    CM(M) Appeal No. 1954 of 2006
    Decided On, 23 September 2008
    At, High Court of Delhi
    For the Appearing Parties: Amit Saxena, Raman Kapur, Advocates.

Judgment Text
(1) THE petitioner is aggrieved by an order dated 9. 10. 2006 dismissing his review application seeking review of order dated 7. 7. 2006 and also by order dated 6. 12. 2005 whereby the petitioner?s (defendant) evidence was closed. The facts leading to closure of petitioner?s (defendant) evidence as reflected in the order dated 7. 7. 2006 are as under: on 28. 3. 2005 no witness was present. Mr. Raja Gopalan, Director of the defendant Company was reported to had gone to Kerala to see his ailing mother, so, the Court adjourned the matter to 12. 05. 05 and direction was given to file the affidavit and supply its advance copy to the opposite party. On 12. 5. 05 against Mr. Raja Gopalan was not present and on his behalf a medical certificate was filed. The Court adjourned the matter to 08. 08. 05 and again direction was given to file affidavit but supply its advance copy. Court granted last opportunity for 08. 08. 05 to the defendant. Again on 08. 08. 05 newly engaged counsel for the defendant appeared who stated that Mr. Raja Gopalan had undergone surgery but in absence of any medical record the Court again gave an opportunity for evidence subject to cost of Rs. 2,000/- for 05. 10. 05. However on 05. 10. 05 again the affidavit was not ready nor any witness was present from the side of defendant. The application of the defendant for waiver of the cost was dismissed and one more opportunity was again given for 06. 12. 05 for evidence. A direction was also given to supply advance copy to the plaintiff at least one week before the date of hearing. On 06. 12. 05 neither the Counsel nor the defendant or any witness was present, no advance copy was given to the plaintiff nor the cost imposed vide order dated 08. 08. 05 was paid, so, in view of the warning given vide order dated 0510. 05 that no adjournment would be granted, DE was closed.

(2) AFTER closure of the defendant?s evidence after giving several opportunities, the defendant moved an application under Order 9 Rule 7 read with read with Section 151 CPC, which was dismissed by the trial Court vide its order dated 7. 7. 2006. The defendant then filed a review application against the order of the trial Court which was dismissed by the trial Court vide order dated 9. 10. 2006. Thereafter, the petitioner (defendant) has approached this Court by way of this petition. The contention of the petitioner is that the petitioner had disclosed several grounds for reviewing the earlier order, closing the evidence of the defendant, but the Court below did not review its earlier dated 7. 7. 2006 or 6. 12. 2005. The petitioner would have to suffer for no fault on his part. The petitioner had also filed a counterclaim of Rs. 12,92,640/- in the said suit so, the evidence of the petitioner was therefore very important. The petitioner had sufficiently explained his inability to appear on 6. 12. 2005 but the trial Court did not consider the request of the petitioner. The trial Court also did not consider the medical certificate issued by reputed medical institutions advising complete bed rest to the petitioner on various dates. It was a fit case where the ex parte order should have been set aside and the petitioner should have allowed to lead evidence.

(3) THE petitioner is an export corporation and is a proprietor firm. It is a business concern and its counter claim would have been based upon the accounts maintained by the petitioner. When the case was put into defendant?s evidence, no witness appeared on several opportunities provided by the trial Court. If the petitioner was not well he could have given attorney to any other person to appear on his behalf and produce the accounts of the company. But the record shows that every time adjournment was sought, the adjournment was given by the Court, one after another, but still no evidence was led by the petitioner. CPC provides that a party, during the lifetime of a case, can take maximum three adjournments. In this case, for defendant?s evidence alone the petitioner had taken six adjournments. The case was listed for defendant?s (petitioner herein) evidence on 28. 3. 05, 12. 5. 05, 8. 8. 05, 5. 10. 05 and 6. 12. 05. Imposition of cost of Rs. 2,000/- and giving last opportunity to the petitioner also did not serve the purpose and despite giving last opportunity and imposing cost on 8. 8. 05 by the Court, no evidence was produced. Still one more opportunity was given and on that day the defendant and his Counsel both absented.

(4) THERE was no way by which the Court could have extended time further for defendant?s evidence or continued the case the defendant?s evidence without the defendant taking interest in the e

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vidence. If the petitioner was not well, the affidavit could have been prepared at petitioner?s residence in kerala and could have been filed long back to show the bona fides of the petitioner (defendant). Non-filing of the affidavit by the petitioner (defendant) despite having six opportunities only shows that the petitioner (defendant) was not interested in the case or wanted to delay the case perpetually. (5) I find no infirmity in the order of the Trial Court below. The petition is hereby dismissed.