Civil Revision No.6722 of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.6722 of 2009(O&M) Date of Decision: January 21, 2011 M/s.TDT Copper Limited .....Petitioner v. M/s.A.L.Ahlia Insurance Company and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Amit Jain, Advocate for the petitioner. Mr.Ajay Jain, Advocate for the respondent no.2. ...... RAM CHAND GUPTA, J.(Oral) C.M.Nos.20737-38-CII of 2010 Requests for placing on record copy of application dated 15.9.2009, Annexure P3. The same is taken on record subject to all just exceptions. Both the applications stand disposed of accordingly. Civil Revision No.6722 of 2009 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of impugned order dated 15.9.2009, Annexure P2, passed by learned Civil Judge, Senior Division, Rewari. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that petitioner-plaintiff had imported 3967 pieces of MT Electrolytic Copper Cathode from Oman and the said goods were insured with defendant no.1. The insurance policy covered the goods of the plaintiff in transit and upto the destination. The petitioner received only 29 trucks out of 32 and hence Civil Revision No.6722 of 2009(O&M) -2- petitioner-company lodged a claim against defendant no.1-Insurance Company. However, Insurance Company failed to settle the claim and hence,the petitioner filed the present suit for recovery of an amount of Rs.64,75,998/-. Respondent-defendant no.2 was served in this case, who filed the written statement contesting the claim of the plaintiff. However, suit against respondent no.1-defendant no.1 of petitioner-plaintiff was dismissed by learned trial Court under Order IX Rule 2 of the Code of Civil Procedure (hereinafter to be referred as the `Code'), as petitioner failed to deposit the requisite expenses for service by way of publication. However, after framing of issues, when the case was fixed for evidence of petitioner- plaintiff on 20.5.2008, i.e., after about one year of passing of order dismissing the suit of petitioner qua defendant no.1 under Order IX Rule 2 of the Code, an application under Section 151 of the Code was moved on behalf of the petitioner-plaintiff for recalling of the said order, which was allowed by learned trial Court vide order dated 8.8.2008. The service upon respondent no.1 was effected by publication and however, as none appeared, he was proceeded ex parte vide order dated 25.11.2008 and the case was again adjourned to 31.7.2009 for evidence of the plaintiff. On 31.7.2009 as well, no witness of petitioner-plaintiff was present and on his request, last opportunity was granted for its evidence for 22.8.2009. On 22.8.2009 as well, no witness of the petitioner-plaintiff was present, and however, in the interest of justice, by granting another last opportunity, the case was adjourned to 7.9.2009 for evidence of the petitioner to be produced at its own responsibility subject to payment of cost of Rs.500/-. On 7.9.2009, two witnesses of the petitioner-plaintiff were present. One of the witnesses was examined and for examination of other witness, date was granted by learned trial Court as Presiding Officer was to go to Narnaul to appear as a witness in some case pending there. Case was taken up again on 8.9.2009. However, on that date, no witness of the petitioner-plaintiff was present. On that date, counsel for the petitioner-plaintiff suffered the statement before learned trial Court, which reads as under:- “ I am unable to lead evidence due to non-availability of the original documents. Time of one week be given. In case I fail to produce evidence on the date fixed, my evidence be Civil Revision No.6722 of 2009(O&M) -3- closed.” On the next date of hearing, i.e., 15.9.2009 as well, the same story was repeated. No evidence of the petitioner-plaintiff was present and rather an application, Annexure P3, was moved requesting for adducing secondary evidence of some documents, photocopies of which were placed on the file, without specifying the documents, on the plea that Management of the Company had been changed and documents could not be searched. Learned trial Court vide impugned order dismissed the said application and also closed the evidence of the petitioner-plaintiff by observing as under:- “ After having heard learned counsel for the parties I am of the considered opinion that the present application deserves to be dismissed. It is not mentioned in the application which documents plaintiff wants to prove by adducing secondary evidence. Essential requirement for proving the documents by secondary evidence not established by the plaintiff before filing the present application. Therefore, I am of the considered opinion that the present application filed by the plaintiff is only for adjournment of the case as the plaintiff has failed to produce any evidence despite his statement that he will produce his entire evidence within a week failing which his evidence deemed to be closed. In view of the above discussion application filed by the plaintiff having no merit and the same is hereby dismissed. No PW is present. Plaintiff has failed to conclude his entire evidence after availing ample opportunities including four last opportunities. Therefore, I am of the considered opinion that there is no justification to adjourn the case further for plaintiff evidence and the same is hereby closed by court order. Now to come upon 8.10.2009 for defendant evidence.” It has been contended by learned counsel for the petitioner that case of petitioner is based on documentary evidence and that only one opportunity be granted to it to lead evidence. However, he has failed to satisfy this Court as to why evidence of petitioner-plaintiff could not be concluded despite taking several opportunities and as to why the application for leading secondary evidence was not filed at the earliest. Civil Revision No.6722 of 2009(O&M) -4- The application filed on behalf of the petitioner is a very vague one. It has not been mentioned as to when the documents were lost. No report regarding loss of documents was lodged with any authority. Details of documents have also not been given. Even it has not been mentioned as to by which mode the documents are sought to be proved, as only some photocopies are available on the record. Hence, it has been rightly argued on behalf of respondent-defendant no.2 that petitioner-plaintiff is negligent in pursuing the case since the very beginning and that respondent -defendant no.2 is being unnecessarily harassed. Law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. Hence, taking into consideration the conduct of the petitioner- plaintiff, as discussed above, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. In view of these facts, the present revision petition is hereby dismissed. 21.1.2011 (Ram Chand Gupta) meenu Judge