P D JAIN Vs. OSWAL AGRO MILLS

JUDGEMENT

(1.) This is a Regular First Appeal filed by the appellant alongwith CM 588 of 1990 to permit the appellant to file an appeal as an indigent person. This application has been filed under Order 33 rules 2 and 3 CPC. The appellant is the defendant and the order under appeal is a decree in suit in the sum of US $ 52,37,284.54. The appeal is against the decree dated May 9,1989 passed in IA 5119/1987 etc. and in Suit No.1917 of 1986 and in OMP 28 of 1987. The suit was filed by Oswal Agro Mills Ltd. against the appellant and others claiming a decree for Rs.3,83,86,288.95 with interest thereon @ 18%.

(2.) . The suit ended in a decree for the amount of US $ 52,37,284.54 with interest and costs. The appeal has been preferred by the first appellant against the said decree and on the ground that the appellant is not able to afford court fee payable on the memorandum of appeal,this application has been filed under Order 33 rules 2 and 3 CPC.

(3.) . Notice was ordered on 24.5.90 and the respondent appeared on subsequent dates of hearing. The matter was placed before the learned Registrar of this court for parties' evidence by an order dated 10.12.91. The case was taken up on 8.4.92,20.7.92, 15.3.93, 26.8.93, and 4.1.94 when no witness was brought before the learned Registrar for adducing evidence on the question whether the appellant could file an appeal as an indigent person. On 14.2.94 none appeared for the appellant, therefore the learned Registrar ordered notice to the appellant and to his counsel. On 22.4.94 counsel Ms.Ratna Divedi appeared and stated that she was no longer holding the brief of the appellant and the appellant had taken away the files from her. She undertook to inform the appellant by the next date of hearing and the matter was adjourned to July 27,1994. Then the matter was adjourned to 5.9.94. On that date learned counsel for the appellant had requested for last opportunity to contact his client to produce his evidence on the application. The matter was adjourned to 19.10.94 by the learned Registrar. On 19.10.94 learned counsel for respondent No.3 has pointed out that this case is pending for the last four years and the applicant is not leading evidence. Learned counsel for the appellant had stated that the appellant was in London and was not able to come to India. He undertook to produce the evidence of the appellant if another date was given. The application was therefore adjourned to 27.10.94. On that date no witness was present and learned counsel sought one more date in January, 1995 as the appellant was in London and it was stated that he was unable to procure evidence in support of the application. In spite of the opposition of the opposite side the learned Registrar granted an adjournment when the matter was adjourned to 5.1.1995. On that date learned Registrar noted that the appellant had not turned up and learned Registrar observed that there was no ground to adjourn the matter. However, in the interest of justice one more opportunity had been granted. The case was adjourned to 29.3.1995. On this date it was stated that the appellant was in U.K. and he was not able to come. It was also stated that the appellant had executed a power of attorney in favour of another person and that person may be examined by the court. The learned Registrar observed that since the application is under Order 33 rules 2 and 3 Civil Procedure Code and even Mr.P.D.Jain had not been examined by this court at the initial stage, it is desirable that Mr.P.D.Jain is examined in this case personally. Counsel then asked for an adjournment and the same was opposed. Learned Registrar gave the final opportunity and adjourned the matter to 28.4.1995. On that date the appellant was not present and learned counsel stated that he was in U.K and no reason had been given for his absence today. The Registrar found that no ground was made for adjourning the matter. The opposite party contended that statement of the respondent should be recorded. Thereafter the statement of Ms.Mukti Chaudhary, counsel for respondent No.1 was recorded without oath and the evidence of the appellant on the application was closed by the learned Registrar. Statement of Mr.Rishikesh, counsel for respondent No.3 without oath was also recorded and it was stated that the evidence of the appellant be closed. The learned Registrar closed the evidence and posted the matter for arguments on the application.