BUDHIRAJA ELECTROCALS Vs. DDA

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of money filed against the defendant/ respondent in this appeal. Issues in the suit were framed vide order dated 07-01-2004. A direction to the plaintiff to commence its evidence was issued on 21-01-2004 and the suit posted for plaintiffs evidence for 27-01 - 2004 when the same was closed as the plaintiff had not produced any witness for examination on that date. Two days later, i.e., on 29-01- 2004 the court below dismissed the suit on merits. Aggrieved plaintiff/appellant has filed the present appeal in this court.

(2.) Ms. Monica Sharma, counsel appearing for the appellant, made a two-fold submission before us. Firstly, she urged that the order of dismissal of the suit on merits was wholly unjustified in the facts and circumstances of the case and in particular because the plaintiff was absent on 29-01-2004 when the suit was dismissed by the court below. She drew our attention to Order 17, rule 2 and 3 of the Code of Civil Procedure and argued that in a case where plaintiff was absent on the date of hearing, the proper order which the court could pass was one for dismissal of the suit for non-prosecution in terms of Order 17, rule 2 of the Code. It was only In cases where substantial evidence of the party who was absent, had been recorded by the court that the court could invoke Explanation to Rule 2 of Order 17 CPC and proceed with the case as if the party was actually present. No evidence in the present case having been recorded, Explanation to Rule 2 of Order 17 CPC could not, according to the learned counsel, be invoked by the court and the only order which the court could pass on 29- 01-2004, the date when the suit came up for hearing, was an order of dismissal of the suit for non-prosecution. In support, she placed reliance upon Prakash Chander Vs. Janki Manchanda AIR 1987 SC 42 and B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and others 2003 (IV) AD (S.C.) 125 = 2003(5) SCC 641.

(3.) Secondly, she argued that closure of plaintiff's evidence by the trial court was, in the facts and circumstances of the case, hasty and resulted in a denial to the appellant of an opportunity of establishing its claim. It was submitted that within three weeks of framing of the issues, the court had, without giving a fair opportunity, closed evidence of the plaintiff. This court could, according to the learned counsel, set aside the impugned judgment and decree, and grant a final opportunity to the appellant to adduce its evidence in the interest of justice and to avoid multiplicity of proceedings which will be inevitable in case the suit is remanded simply for fresh orders by the court below.