MAURIA UDYOG Vs. SHUBH KARAN SABOO

JUDGEMENT

(1.) BRIEF facts of this Regular Second Appeal are that the plaintiff-respondents filed a suit against the defendants-M/s. Mauria Udyog Limited for recovery of Rs. 1,68,150/- with interest. On being served, defendant-appellants filed written statement and denied the plaintiffs' claim on the ground that they have added excess charges in the invoices than the value of the goods actually supplied by the plaintiffs to the defendants; the plaintiffs have also not taken into account the amount of rejected material worth Rs. 24627/- and some payments made by the defendants totaling Rs. 31,000/-. Denying plaintiffs' claim the defendant-appellants claimed that they are entitled to recover Rs. 56,621.25 paise from the plaintiff-respondents. At the evidence stage, the defendants remained absent. Plaintiffs adduced their evidence. The trial Court decreed plaintiffs' suit on January 19, 1995. Interest at the rate of 18 per cent per annum from the date of suit till realization was also awarded. On January 2, 1995, defendants' evidence was closed under Order 17 Rule 3 CPC. Challenging this order the defendant-appellants filed Civil Revision No. 1806 of 1995 in this Court. On April 28, 1995, they also filed an application for condoning the delay of 29 days in filing the revision. Vide order dated May 5, 1995, delay was condoned. When notice of motion was issued to the plaintiff-respondents, it was submitted that the plaintiffs' suit had already been decreed on January 19, 1995. Therefore, revision filed against the interim order dated January 2, 1995, was not maintainable. Without deciding this legal point, the revision was disposed of on August 2, 1995, with a direction that it would be open to the petitioners to take the points raised in the revision petition in the appeal against the judgment and decree dated January 19, 1995; if such an appeal is filed and the same is entertained in accordance with law, the points raised therein would be decided according to law.

(2.) THE defendant-appellants filed appeal No. 28 of 1995 on August 14, 1995. Along with the memorandum of appeal, defendant-appellants also filed an application under Section 5 of the Limitation Act seeking condonation of delay. This application was declined by the learned District Judge vide his order dated August 9, 1996, holding that the revision petition was decided on August 2, 1995, by the High Court and the appellant had filed this appeal on August 16, 1995. He had failed to explain this interRegulation m delay. Even the revision was filed beyond period of limitation and thus the trial Court's judgment and decree became final.

(3.) DEFENDANT -appellants' learned counsel valiantly argued that the defendants are seeking only one opportunity to lead evidence on their behalf. Their evidence was closed by the trial Court on January 2, 1995. He also submitted that the defendant-appellants are willing to pay the decretal amount on the condition that the plaintiff-respondents should give security that in case the decree passed by the trial Court is reversed by the lower appellate Court, the plaintiff-respondents shall return the amount to the defendant-appellants.