CRP 126/2008 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY Heard Mr. A.K. Gupta, learned counsel for the petitioner. Seen the office notes which disclose that inspite of repeated enedavours on the part of the petitioner in terms of the orders of this Court to that effect, noti ce of the instant proceeding could not be served on the opposite party. The last report in the que is with the endorsement addressee left without address. A similar report is mentioned in the office note dated 04.01.2011. The learned counsel for the petitioner submits that the whereabouts of the oppo site party are not known. Having regard to the order impugned, this Court consi ders it appropriate to close the instant proceeding. The opposite party had instituted Title Suit No.46/2006 against the petitioner p raying for a decree for a declaration that the agreement of sale dated 25.05.200 5 and 12.08.2005 between the parties stood determined due to non performance of the contractual obligations by the defendant-petitioner. A decree for realizati on of an amount of Rs.50,625/- with interest by way of adjustment against the agreed consideration price with consequential reliefs was sought for as well. The petitioner-defendant in his written statement while resisting the claim of t he opposite party-plaintiff recorded a counter claim seeking refund of an amount of Rs.3,00,000/- paid against the agreement for sale as well as a sum of Rs.4,5 0,000/- by way of compensation. The learned trial court by the impugned order ha ving required the petitioner-plaintiff to open the evidence, being aggrieved, he is before this Court seeking judicial intervention. The learned counsel for the petitioner has drawn the attention of this Court to a statement made in the petition to the effect that the impugned order had been passed without affording an opportunity to him. In absence of any counter, the statement has remained uncontroverted as on date. Having regard to the nature of the rival claims made by the parties and the order impugned in the instant p roceeding, this Court is of the view that in the interest of expeditious disposa l of the suit, the matter ought to be remitted for a fresh consideration of the issue by the learned trial Court. This is more so, as meanwhile five years have elapsed. Ordered accordingly. The impugned order dated 13.02.2008 is interfered with. The learned trial Cour t would decide afresh on the issue, as to who would first adduce evidence in the suit having regard to the reliefs sought for in the suit and the counter claim made. No costs.