MS BLUE HEAVENS GARMENTS Vs. MS KIDS COLLECTION

JUDGEMENT

(1.) By this petition, the petitioner has assailed an order dated 25th July, 2009 whereby review application of the petitioner was dismissed by the trial court. The petitioner has sought review/recall of an order dated 21st February, 2009 whereby the trial court had closed cross-examination of the witness of the plaintiff since the defendant counsel did not turn up for cross-examination of the witness whose cross-examination was being postponed time and again because of petitioner.

(2.) This review application was made after two months of passing of the order dated 21st February, 2009. The trial court observed that the period of limitation for review was 30 days and this application was filed after more than 60 days. There was no application seeking condonation of delay nor any reasons were given for not filing application within period of limitation. The trial court, therefore rightly observed that the review application was liable to be dismissed only on this ground. The trial court also went into the merits and found that incorrect facts were stated in the review application.

(3.) During arguments before this Court, counsel for the petitioner did not dispute these observations made by the trial court about the incorrect facts having been stated in the review application. The correct facts show that PW-1 was partly cross-examined on 30th August, 2008. His further cross-examination was deferred for 25th October, 2008 when none was present on behalf of the defendant. However, the plaintiff also sought adjournment on that day since his counsel was out of station. The case was adjourned for further cross-examination of this witness on 6th December, 2008. Even on 6th December, 2008, counsel for defendant did not appear for cross-examination of this witness upto 12:05 p.m. Counsel for the plaintiff who was waiting for the defendant counsel, requested the court that he had to go back to Tis Hazari Courts and the case may be taken on some other day. The case was then again taken up on 21st February, 2009. None appeared for the defendant on first two calls. Proxy counsel appeared on behalf of the defendant who did not cross-examination the witness. The trial court therefore, closed the cross-examination.