(1.) This revision petition is directed against an order dated 30th January 1989 rejecting an application to review closing plaintiff's evidence on the ground of non-payment of costs.
(2.) This order has been assailed by the learned counsel for the petitioner on the ground that on account of the marriage of the nephew of the counsel for the plaintiff 6th September 1989 at Bombay, he sought an adjournment which was granted and the case was adjourned to 6th November 1989, On 6th November 1989, the partner of the plaintiff firm Anil Gupta had not turned up by the time the case was called. The case was adjourned to 30th January 1990 subject to further payment of the costs as last opportunity. On 29th evening, the counsel for the plaintiff apprehending that he would be able to attend the case, requested Shri B.P.S. Tyagi on 29th January 1990 to come and attend to this case. The plaintiff did not come to the court, costs imposed on the previous dates was not paid. Consequently, the evidence was closed and since the onus of all the issues was on the plaintiff the suit was dismissed.
(3.) The contention of the learned counsel is that there was subsequent discovery about the new and important fact that the plaintiff was bed-ridden at the time of passing of the impugned order of closing evidence and dismissing suit. Had the court known this fact, it might have extended time to pay the costs as well as to plead evidence. Consequently, rejection of the review was not justified. 32. The learned counsel for the petitioner relied upon Esso. Standard E.I Co Vs. Wearwell Cycle, 1977 RLR 497. In para 8 of the judgment, following observations were made on the point: