INDIA CARBON LIMITED Vs. GANESH PRASAD SINGH

JUDGEMENT

(1.) In a suit for specific performance of contract instituted by Sri Ganesh Prasad Singh (hereafter the plaintiff), India Cabon Ltd. is the defendant (hereafter the defendant). After nearly 8 (eight) years of institution of the suit and while it had progressed to the stage of recording of evidence, the defendant filed an application under Order 7 Rule 11, Civil Procedure Code on August 13, 2010 praying for rejection of the plaint. By an order dated September 6, 2010, the learned Judge of the trial Court rejected the application on contest without costs. This order is impugned in CO. 3164 of 2010, being an application under section 115 of the Code, presented before this Court on September 20, 2010. While the said application was pending for consideration, the learned Judge of the trial Court had fixed December 10, 2010 for further cross-examination of the PW1. The defendant applied for adjournment. The learned Judge was of the view that since this Court had not granted stay and the defendant even after filing the said revisional application had cross-examined the PW1 on November 29, 2000, there was no reason to allow the prayer for adjournment and while refusing the prayer of the defendant requested the parties to get ready for further cross-examination of PW1 by 1.15 p.m. Later, by an order of even date, the learned Judge recorded that the learned Advocate for the defendant had declined to cross-examine PW1 and in such circumstances the witness was discharged on closure of his evidence. Since the learned Advocate for the defendant could not apprise the learned Judge as to whether the defendant would adduce evidence or not, the evidence of the defendant was also closed. The order dated December 10, 2010 forms the subject matter of challenge in CO. No. 3931 of 2010, being an application under Article 227 of the Constitution.

(2.) Since both the revisional applications arise out of the same suit, the same have been heard together and shall stand disposed of by this common judgment and order.

(3.) Mr. Bhattacharya, learned Senior Advocate for the defendant, duly assisted by Mr. Jishnu Saha, learned Advocate contended that the learned Judge acted illegally in not rejecting the plaint filed by the plaintiff. According to him, although the suit was one for specific performance of contract, there was no valid subsisting contract between the parties, which could be enforced; therefore, the suit, was instituted in abuse of the process of law and ought to have been nipped in the bud. He further contended that by not rejecting the plaint, the defendant had been subjected to unnecessary inconvenience and harassment.