St. Ives Laboratories Inc. vs Aarohi

V.K. Shali, J.

O.A No. 12/2011 and IA No. 691/2011

This is an appeal under Chapter II Rule 4 of the Delhi High Court (Original Side) Rules, 1967 read with Section 151 CPC against the order-dated 6.12.2010 passed by the learned Joint Registrar. It is accompanied by an application bearing No. 691/2011 u/s 5 of the Limitation Act seeking condonation of delay of 14 days in filing the appeal.

I have heard the learned Counsel for the Plaintiff/Appellant and perused the averments made in the application. For the reasons mentioned in the application, the delay of 14 days in filing the appeal is condoned.

The appeal has been filed by the Appellant against the order of the Joint Registrar dated 06.12.2010.

By virtue of the said order, the evidence of the Appellant/Plaintiff has been closed. It is the contention of the learned Counsel for the Appellant/Plaintiff that the evidence of the Appellant /Plaintiff was closed by the learned Joint Registrar erroneously without recording the statement of PW-2 who was present on that date. He contended that the learned Joint Registrar had stated that as the witness does not have in his possession the authority letter or the resolution issued by the Plaintiff Company stating that he was duly authorized to testify on behalf of the Plaintiff, therefore, his examination could not be recorded. Accordingly, his evidence was closed.

It has been urged by the learned Counsel for the Appellant/Plaintiff that the resolution/authority letter of the Appellant company, authorizing PW-2 to testify as a witness on behalf of Appellant was filed along with his affidavit way back on 13.01.2010, therefore, this observation of the learned Joint Registrar is not in consonance with the record. Alternatively, it was contended that even if it is assumed that there was no proper authorization, still the statement of PW-2 who was present ought to have been recorded as his affidavit was already on record. The question as to whether he could testify or not for want of authority is a question of appreciation of evidence, which was to be decided by the Court at the stage of final disposal of the case.

The learned Counsel for the Defendant/Respondent had sought time to obtain instructions and it has been contended that they are opposing the appeal though no grounds for opposition were furnished. In any case, it was stated that in case the Court allows the appeal, the Appellant may be put to terms.

I have heard the learned Counsel for the parties and perused the record.

I feel that there is some merit in the contention of the learned Counsel for the Plaintiff /Appellant that the learned Joint Registrar ought not to have closed the evidence without permitting the PW-2 to tender his affidavit by way of evidence and further giving an opportunity to the Defendant /Respondent to cross examine the witness. This is on account of fact that the affidavit of the witness was already on record and there was a resolution annexed to the affidavit, which authorized him to testify on behalf of the Plaintiff Company. It was essentially for the Defendant to cross examine the said witness and bring about any infirmity in his testimony, with regard to his competence or demolish the credibility of his testimony by cross examination. The Court at an appropriate stage would have appreciated and assessed the testimony of the said witness and handed down a finding as to whether his testimony could be accepted in support of the Appellant/Plaintiff''s case or not. But simply closing the evidence of the Plaintiff without recording the statement of his witness would not be in consonance with law because his witness was present and this order of the learned Joint Registrar has caused prejudice to the Plaintiff. I feel that the order, which has been passed by the learned Joint Registrar, is not sustainable in the eyes of law.

I, accordingly, set aside the order of the learned Joint Registrar dated 06.12.2010 and direct the learned Joint Registrar to record the testimony of PW-2. The appeal is allowed. Parties to bear their own cost.

List before the learned Joint Registrar on 27.1.2011.