SUBH MACHINERY CORPORATION Vs. PESTICIDES INDIA

JUDGEMENT

(1.) THIS is a defendant's revision against the order of the learned Additional District Judge, Udaipur dated 6 -11 -1984 by which he restored the suit of the plaintiff -non -petitioner which was earlier dismissed on 1 -8 -1981 holding that although the order dated 1 -8 -1981 purported to be passed under Order 17, Rule 3 Civil PC it must be deemed to have been passed under Order 17, Rule 2 CPC.

(2.) I have heard the learned counsel for the parties and have gone through the record.

(3.) FOR the appreciation of this contention, a few facts leading to the dismissal of the suit may be mentioned. The plaintiff Pesticides India had filed a suit for recovery of Rs. 1,15,600/ - against M/s Subh Machinery Corporation Pvt. Ltd. and the same was pending before the learned Addl. District Judge. On 1 -8 -1981, the suit was fixed for the plaintiff's evidence. Earlier on 2 -5 -1981, the plaintiff had sought an adjournment for producing his witnesses and it was on that request that the case was adjourned and fixed for the plaintiff's evidence on 1 -8 -1981. On 1 -8 -1981, the plaintiff's counsel pleaded no instructions from the plaintiff and had then with drawn from the proceedings of the suit. The learned Addl. District Judge observed that the issues had been framed in the suit on 19 -1 -1978 and since then it was pending for the plaintiff's evidence. One witness Prashant Verma was examined in part and his cross examination was reserved but the plaintiff did not produce the evidence and the evidence of Prashat Verma in these circumstances could not be read against the defendant. He, therefore, directed that as no witness was produced on that day, fixed for the plaintiff's evidence. The plaintiff's suit was dismissed under Order 17, Rule 3 CPC.