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2006 DIGILAW 3572 (MAD)

Pravin K. Mehta v. Spartek Ceramics India Ltd.

2006-12-21

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition filed against the order made in I.A. No: 8212 of 2006 in O.S.No: 9370 of 1995 dated 17.7.2006 by the learned IV Additional Judge, City Civil Court, Chennai.) As against the dismissal of the Interlocutory Application for default, which was filed by the revision petitioner/defendant to recall the respondent/plaintiff witness for further cross examination, this revision has been filed. 2. The case in brief is that the respondent/plaintiff filed the suit against revision petitioner/defendant claiming a sum of Rs.7,08,919.50 together with interest amounting to Rs.9,21,088.30/=. Along with the written statement, the revision petitioner/defendant also claimed a set-off for a sum of Rs.10,13,446.89 together with interest at Rs.14,99,900/=,but now in the CRP.No.986/2005 disposed of by this court on 1.2.2006, the revision petitioner/defendant restricted his claim to Rs.10 lakhs with further interest at the rate of 25% per annum on the principle from the date or raising the counter claim/set-off. 3. The following dates and events which led to the filing of this revision are essential to adjudicate issue involved in this revision: In March 1995 the plaint in O.S.No:9370 of 1995 filed before this court and later transferred to the IV Assistant Judge, City Civil Court for want of pecuniary jurisdiction. In April 1997 written statement along with Set-off/counter claim filed before the said court. In the year 2003, I.A.No:14038 of 2003 was filed by the defendant to decide the issue of jurisdiction as the preliminary issue and it is still pending before the said court. When the I.A.,is pending the Trial Judge posted the suit for trial on 4.2.2004. On that day the said I.A., was posted for enquiry on 9.2.2004 as the defendant was not ready on that day to cross examine PW.1. On 9.2.2004 as the defendant's counsel was not feeling well, he was unable to cross examine P.W.1 who was present in court. Therefore, the trial court adjourned the suit to 18.2.2004 for the cross examination of PW.1. On 18.2.2004, PW.1 was cross examined and his evidence was closed and the suit was posted for defendant's evidence on 4.3.2004. On that day an I.A.4762/2004 to receive the document was field by the defendant. The trial Judge posted the suit as well as the I.A., for preliminary jurisdiction as well as the I.A., to receive documents on 8.3.2004. On 18.2.2004, PW.1 was cross examined and his evidence was closed and the suit was posted for defendant's evidence on 4.3.2004. On that day an I.A.4762/2004 to receive the document was field by the defendant. The trial Judge posted the suit as well as the I.A., for preliminary jurisdiction as well as the I.A., to receive documents on 8.3.2004. On 8.3.2004, the trial Judge posted the suit for the counter and disposal of I.A.No.4762/2004 on 15.3.2004 and on that day the said I.A., was allowed as no counter was filed. The suit was again posted for defendant's evidence on 1.4.2004, but the defendant was cross examined only on 28.6.2004 after several adjournments. 4. Thus after closure of evidence of the plaintiff's side on 18.2.2004 and on the defendant's side on 29.6.2004, the revision petitioner/defendant filed I.A.No:10621 of 2004 to reopen and recall PW.1 for further cross examination and the same was allowed on 2.8.2004 and the matter was adjourned to 9.8.2004 for further cross examination of PW.1. But according to the revision petitioner, since then PW.1 has not been appearing for his cross examination before the trial court. 5. At this stage I.A.No:13319 of 2004 was filed by the plaintiff to condone the delay in filing reply to the set off claimed by the defendant which I.A., was dismissed for non compliance of the order, but on 3.1.2005 allowed when the plaintiff filed I.A.No:17886 of 2004 for extension of time to comply with the orders passed in I.A.No.13319 of 2004 along with I.A.No.17792 of 2004 filed by the defendant to condone the delay in paying the court fee. Thus the matter has been successfully dragged on without cross examination of PW.1 by the defendant. But the plaintiff filed CRP.No.986 of 2005 before this Court and obtained a stay against the orders passed in I.A.No:17792/2004 which is an application to condone the delay in paying the court fee. 6. In the interregnum period, the suit had been posted periodically and being adjourned on 21.3.2005, 25.4.2005, 20.6.2005 and on 21.7.2005. On 21.7.2005 the plaintiff's counsel filed a memo stating that CRP.No.986/2005 was pending before this Court. On 9.8.2005 he filed a memo stating that stay has been granted in the said CRP by this court. Thereafter on 1.2.2006 the CRP.986 of 2005 was disposed of by this court and the defendant has restricted his claim to Rs.10 lakhs as already mentioned. 7. On 9.8.2005 he filed a memo stating that stay has been granted in the said CRP by this court. Thereafter on 1.2.2006 the CRP.986 of 2005 was disposed of by this court and the defendant has restricted his claim to Rs.10 lakhs as already mentioned. 7. Thereafter on 9.3.2006 one of the in-charge judge perused the case records and after verification posted the matter on 13.3.206 for further cross examination of PW.1 On 13.3.2006 as the counsel for the defendant did not appear, dismissed the I.A.No: 10621/2004 by closing the evidence of PW.1. Again the defendant filed I.A.No.8212 of 2006 to reopen the recall PW.1 for further cross examination, which was dismissed by the impugned order dated 17.7.2006. 8. For verification of the averments, this court also called for the records from the trial court and perused the same. Admittedly, both the parties were filing I.A., after I.A., claiming one relief or the other. There was a CRP also pending before this court which came to be disposed of only on 1.2.2006. Since the earlier I.A.No:10621/2004 which was allowed to further cross examination of PW.1 has been dismissed only for the non appearance of the counsel for the defendant, on which date he was alleged to be indisposed of, I am of the view that ends of justice would be met with if one more opportunity is given to the defendant to cross examine the plaintiff's witness. Further by showing one more indulgence, the plaintiff is not going to be prejudiced. At the same time, as the suit is of the year 1995 and the trial is yet to commence, this court directs that the defendant shall complete the cross examination of the plaintiff's witnesses within three hearings. The trial court also dispose of all the pending Interlocutory Applications and proceed with the final hearing of the suit. 9. In such circumstances, the CRP is allowed setting aside the order passed in I.A. No: 8212 of 2006 in O.S.No: 9370 of 1995 dated 17.7.2006 on the file of the learned IV Additional Judge, City Civil Court, Chennai. Consequently, connected Miscellaneous Petition is closed. No costs.