BRITISH BOOK DEPOT Vs. DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) A. N. Verma, J. The petitioner was a defendant in a Suit (Regular Suit No. 405 of 1990) filed by opposite party No. 3 for permanent injunction. The said Suit was dismissed in default on 28-8-1993. The petitioner who had also filed a counter-claim made a prayer that the same be decided. It appears that since the petitioner did not tender evidence in support of his case, the Court on 17-2-2003 closed his evidence and fixed 24-2- 2003 for arguments. The petitioner is said to have moved an application for recall of the said order which too was rejected vide order dated 5-4-2003. Being aggrieved against the said order a Revision was preferred. The opposite party No. 1 vide judgment and order dated 4-9-2003 dismissed the Revision.

(2.) THE learned counsel for the petitioner submitted that the order dated 17- 2-2003 is manifestly illegal inasmuch as opportunity to tender evidence in support of this case has been denied to him. In this connection he referred to Rules 2 and 3 of Order XVII of Code of Civil Procedure. According to him, even if he was not present on the date fixed and also failed to produce evidence in support of his case, the Court ought to have proceeded to decide the case in accordance with Rule-2 of Order XVII of C. P. C. As per his arguments the Court did not proceeded in accordance to what is contemplated under Rules 2 and 3 of Order XVII of C. P. C.