1 fa342 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.342 OF 2008 Central Bank of India ...Appellant vs. M/s.Saras Agro Sales Corporation & Others ...Respondents Ms Prajakta Mhatre i/b M/s.Thakore Jariwala & Associates for the appellant Mr.S.R.Agarkar & U.B.Nighot for the respondent nos.2 & 3 Mr.J.Shekhar & Co. for respondent no.4 CORAM : A.S.OKA,J. DATE : MARCH 16,2011 P.C.: 1 Heard learned counsel for the appellant, learned counsel for the 2 nd and 3 rd respondents and the learned counsel for the 4 th respondent. On 21 st February 2008 notice for final disposal at admission stage was issued. The suit filed by the appellant for recovery of money has been dismissed by the impugned Judgment and decree dated 12 th June 2004. It must be noted here that before passing impugned decree, the suit was already dismissed for want of prosecution as against the 3 rd and 4 th respondents (3 rd and 4 th defendants). Admittedly, during the pendency of the suit, no application was made by the appellant for restoration of the suit which was dismissed as against the said defendants. Therefore, appeal as against the respondent nos.3 and 4 is not maintainable in law. 2 In the suit filed by the appellant-bank for recovery of the amount due and payable by the first respondent, the trial Court had passed an order that the suit will proceed ex-parte as against the first 2 fa342 defendant. As the second defendant failed to file his written statement, trial Court directed that the suit will proceed as against the said defendant without written statement. It appears that the learned trial Judge called upon the appellant to prove the claim in the suit. Accordingly, an affidavit in lieu of examination in chief of the Senior Bank Manager was filed by the appellant. Along with the affidavit, only photo copies of relevant documents relied upon by the appellants were filed. The learned Judge held that photo copies of the documents cannot be admitted in evidence and therefore, he proceeded to dismiss the suit. 3 Perhaps, the appellant was under impression that as there was no contest by the concerned defendants, original documents need not be filed along with the affidavit in lieu of examination-in-chief. 4 The appellant did file affidavit in lieu of examination-in-chief. The appellant is a nationalised bank. The first and second defendants did not contest the suit. Therefore, in the interests of justice, an opportunity deserves to be granted to the appellant to produce original documents on record of the suit. For that purpose, order of remand will have to be passed. 5 Hence, I pass the following order : i) Impugned Judgment and Decree dated 12th June 2004 is quashed and set aside and the Special Civil Suit no. 379 of 1997 is restored to the file of the trial Court. ii)It is made clear that the suit stands dismissed as against the 3rd and 4th defendants for want of prosecution and the suit will proceed only as 3 fa342 against the 1st and 2nd defendants. iii)It will be open for the appellant to file original documents on record of the trial Court. iv)The trial Court will decide the suit afresh in accordance with law. v) It will be open for the 1st and 2nd defendants to apply to the trial Court for seeking extension of time to file written statements. If such application is made, the trial Court will decide the same in accordance with law. vi)All contentions of the parties on merits of the suit are kept open. vii)Appeal is disposed of in above terms. JUDGE