Kachchh District Panchayat vs Prakash C. Thakkar

Honourable Mr. Justice G.B. Shah

Heard the learned Advocate Mr Premal R Joshi, learned Advocate for the petitioner. Though the respondent has been duly served neither he has filed any appearance nor he has remained present in this proceeding.

Being aggrieved and dissatisfied with the order dated 22.12.2006 passed by the learned Addl. Civil Judge and Judicial Magistrate, First Class, Bhuj, Kachchh in Regular Civil Suit No.259 of 2002 below Exh. 101, the petitioner has approached this Court by way of filing this Special Civil Application.

The brief facts of the petitioner''s case are as under:

The petitioner is incorporated under the provisions of the Gujarat Panchayats Act. The petitioner carries out the work assigned to under the Gujarat Panchayats Act. The respondent is a Government approved contractor and carries out the work of construction. In pursuance of inviting tenders for the work of construction of flood damaged repair to Bhekhdo M.I. Scheme at village: Bhekhdi, Taluka: Lakhpat, District: Kachchh, amongst others the present respondent also filled the tenders and upon opening of the same, the respondent''s tender was accepted. The work order was also issued and as per the work order, time limit for the said work was prescribed and he was required to complete the work within the stipulated time. However, the respondent failed to start the work as per the agreement and therefore, the petitioner has filed Regular Civil Suit Suit No.259 of 2002 before the learned Civil Judge for damages.

3.1 The application moved on 21.9.2005 before the Civil Judge in Regular Civil Suit No.259 of 2002 by the learned Advocate for the petitioner asking for adjournment was rejected by the learned Civil Judge. Again on 20.7.2006 the learned Advocate for the petitioner has moved another application with a request to open the stage of evidence. The learned Judge, by order dated 22.12.2006, rejected the said application on the ground that the said suit is pending since long. Against this order the petitioner has filed the present Special Civil Application.

Learned Advocate for the petitioner has drawn the attention of this Court to the order dated22.12.2006 passed below Exh.101 in Regular Civil Suit No.259 of 2002 and submitted that as mentioned in para 2 of the said order dated 19.12.2000, the plaintiff remained present before the Court and vide Exh.56 the deposition of the plaintiff was recorded and after completion of the same, cross-examination was carried out and as the court timing was over, further cross-examination of the witness was adjourned. Thereafter the plaintiff has remained absent and hence his right to give evidence was closed. Learned Advocate for the petitioner has submitted that due to earthquake on 26.1.2001, the whole building of the District Panchayat was collapsed. The debris were not removed for a considerable long period and because of that most of the records were destroyed and the District Collector, Kachchh had also issued certificate to that effect. It is the fact that the plaintiff remained absent for a considerable long period for one or the other reason though enough opportunity had been given by the court. Considering the fact that if the stage of evidence will not be opened, ultimately the public exchequer would suffer and therefore, considering the interest of public exchequer, one last opportunity should be given by this court by imposing stringent condition to the plaintiff.

I have considered the above referred circumstances made by the learned Advocate for the petitioner and also considered the fact that though Rule has been issued, the respondent-original defendant has remained absent and considering all these aspects as a whole and considering the fact that the petitioner is Kachchh District Panchayat, this petition deserves to be allowed.

In the result, this Special Civil Application is allowed. The impugned order dated 22.12.2006 passed by the learned Addl. Civil Judge and Judicial Magistrate, First Class, Bhuj, Kachchh in Regular Civil Suit No.259 of 2002 below Exh. 101 is set aside. As a last chance, the petitioner-original plaintiff is permitted to lead evidence in accordance with law and as assured by the learned Advocate for the petitioner, the plaintiff will remain present on all necessary date and time till the evidence be completed and render their cooperation. If the petitioner will not extend any cooperation to the learned Civil Judge in completion of the suit proceedings as happened in the past, the learned Civil Judge is at liberty to take stern action against the erring plaintiff in accordance with law.