British Book Depot vs District Judge,Lucknow & Ors.

A.N. Verma, J.—The petitioner was a defendant in a Suit (Regular Suit No. 405 of 1990) filed by opposite party No. 3 for permanent injunction. The said Suit was dismissed in default on 2881993. The petitioner who had also filed a counterclaim made a prayer that the same be decided. It appears that since the petitioner did not tender evidence in support of his case, the Court on 1722003 closed his evidence and fixed 2422003 for arguments. The petitioner is said to have moved an application for recall of the said order which too was rejected vide order dated 542003. Being aggrieved against the said order a Revision was preferred. The opposite party No. 1 vide judgment and order dated 492003 dismissed the Revision.

The learned counsel for the petitioner submitted that the order dated 17 22003 is manifestly illegal inasmuch as opportunity to tender evidence in support of this case has been denied to him. In this connection he referred to Rules 2 and 3 of Order XVII of Code of Civil Procedure. According to him, even if he was not present on the date fixed and also failed to produce evidence in support of his case, the Court ought to have proceeded to decide the case in accordance with Rule2 of Order XVII of C.P.C. As per his arguments the Court did not proceeded in accordance to what is contemplated under Rules 2 and 3 of Order XVII of C.P.C.

The explanation given in the application for recall was that on the date fixed, i.e. 1722003, the counsel of the defendant (petitioner) was busy in High Court and he had gone to call him, but by the time he could come alongwith his Advocate, the order dated 1722003 had already been passed. This explanation, it appears, has not been considered by the learned Court below in its right perspective. In case the counsel was busy elsewhere the Court below ought to have afforded an opportunity to produce his evidence in support of his case. The Court below should not have deprived the petitioner from tendering evidence in support of his case.

In view of the above, the writ petition succeeds and is allowed. The order dated 1722003 (Annexure No. 5) as well as the order dated 542003 (Annexure No. 7) and judgment and order dated 492003 (Annexure No. 1) are hereby quashed. The petitioner shall appear before opposite party No. 2 on the date to be fixed by it and tender whatever evidence he intends to file in support of his case. The opposite party No. 2 thereafter shall proceed to decide the case on merits expeditiously. The trial Court shall not allow unnecessary and frivolous adjournments.