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Judgment
Indermeet Kaur, J.
CM No. 22475/2010 (for exemption)
Allowed subject to just exceptions.
RSA No. 228/2010
This appeal has impugned the judgment and decree dated 08.9.2010 which had endorsed the finding of the trial judge dated 03.3.2010 whereby the application filed by the Plaintiff under Order IX Rule 9 of the CPC (hereinafter referred to as ''the Code'') seeking restoration of the suit had been dismissed. The suit had been dismissed on 05.5.2008 for non-prosecution.
The Plaintiff had filed a suit for recovery against three Defendants. Defendants No. 1 and 3 had been proceeded ex parte. Defendant No. 2 has contested the suit by filing his written statement. Record shows that on 02.5.2005 issues were framed. Matter had been fixed for evidence of the Plaintiff on 11.6.2005, on which date the affidavit of the Deputy General Manager Girish Bhatia had been filed. Matter was thereafter adjourned to 21.11.2005. Plaintiff sought an adjournment for the cross-examination of the witness as the witness had to go to Income Tax Office for urgent work. Matter was adjourned to 28.1.2006. Thereafter, as is evident from the impugned order PW-1 did not appear on the subsequent dates i.e. on 28.1.2006, 27.5.2005, 16.9.2006, 12.3.2007, 21.8.2007 and 5.5.2008 (not disputed by the learned Counsel for the Appellant). On all these dates either a written adjournment was sought by the Plaintiff or no witness was summoned or had appeared. On 16.9.2006 which order was reiterated again on 12.3.2007 and again on 21.8.2007 last opportunity had been granted to the Plaintiff to produce his evidence. Cost had also been imposed.
On 5.5.2008 the trial judge was at the end of his tether and finding no alternative was constrained to dismiss the suit for non-prosecution. On the same day in the post lunch hour an application under Order IX Rule 9 of the Code had been filed along with receipt of deposit of cost. Notice of this application had been issued to Defendant No. 2 who was the only contesting Defendant. Vide order dated 3.3.2010 this application was dismissed. This order was affirmed by the first appellate Court vide the impugned judgment dated 08.9.2010. The impugned judgment has noted that the record had evidenced that the Plaintiff was casual and negligent in prosecuting the litigation. PW-1 had no time to come to the court to complete his statement although sufficient opportunities have been granted for the said purpose. Court had noted that the witness was well aware of the next date but adjournment was sought always on the ground that he was busy in one meeting or the other. In spite of the Plaintiff having been granted three last opportunities to complete his evidence, it was of no avail. Cost had also not been deposited at the time when the impugned order was passed.
This is a second appeal. On behalf of the Appellant, it has been submitted that a substantial question of law has arisen for the reason that PW-1 had tendered his evidence by way of affidavit; Defendants No. 1 and 3 were ex parte; Defendant No. 2 was a guarantor and the only contesting party; the Plaintiff would have given up his claim against Defendant No. 2; in these circumstances it was imperative on the part of the court to have considered the affidavit qua the Defendant No. 1 and 3 who were not contesting the proceedings and decreed the suit qua them. Dismissal of the suit in its entirety is a perversity.
Record shows that the affidavit by way of evidence had been filed by PW-1; his examination-in-chief was also not completed because the documents had not been proved through his version and on 21.11.2005 he had sought an adjournment for the said purpose. The examination-in-chief of the witness was yet to be completed; testimony of such a witness whose examination has been recorded only in part cannot be read in evidence. The question of decreeing the claim of the Plaintiff qua Defendants No. 1 and 3 did not arise.
The impugned judgment has also noted that there was a delay in filing the first appeal; the impugned judgment was passed on 5.5.2008; appeal was filed on 29.3.2010; this was after a gap of 23 months. The contention of the Appellant that he is entitled to benefit of Section 14 of the Limitation Act as he was pursuing a wrong remedy bonafidely i.e. his remedy under Order IX Rule 9 of the Code was rejected. Impugned judgment noted that the Plaintiff (who was represented by the same counsel in the trial court as also in the first appellate court) whose suit had been dismissed for non-prosecution, should have filed an appeal and not sought his remedy through the provisions of under Order IX Rule 9 of the Code. Before this Court no argument has been addressed qua this issue.
No substantial question of law has arisen. Dismissed in limine.