RSA No.1107 of 2008(O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1107 of 2008(O & M) Date of Decision: 20.09.2010. M/s Tirgun Auto Plast Pvt. Ltd. .....Appellant Versus Punjab Financial Corporation and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.D. S. Kamra, Advocate for the appellant. Mr. G. S. Gill, Advocate for respondent No.1. Mr. S. C. Thatai, Advocate with Mr. Nitin Thatai, Advocate for respondent Nos.2 to 5. L. N. MITTAL, J (ORAL) CM No.4966-C of 2010 On the request of counsel for the applicant-appellant and with the consent of counsel for respondents, the main appeal itself (which is on the regular board of this Bench) is taken up for hearing and final disposal today. In view thereof, the instant application is disposed of as having been rendered infructuous. Main Appeal. Plaintiff is in second appeal, having remained unsuccessful in both the Courts below. I have heard learned counsel for the parties and perused the case file. RSA No.1107 of 2008(O & M) -2- In view of the limited prayer involved in the instant appeal, I need not to go into the merits of the case. Suffice to notice that the suit filed by plaintiff-appellant against respondent No.1-defendant- Punjab Financial Corporation was dismissed by the trial Court i.e learned Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 10.05.2007. Plaintiff preferred first appeal against the judgment and decree of the trial Court. During pendency of the said appeal, respondent Nos.2 to 5 were impleaded as party being purchasers from respondent No.1-defendant. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Chandigarh vide judgment and decree dated 20.03.2008. Issues in the case were framed on 19.07.2006 and the case was adjourned to 01.11.2006, 02.03.2007 and 10.05.2007 for evidence of the plaintiff and since the plaintiff failed to lead any evidence, plaintiff's evidence was closed by Court order and the suit was dismissed being case of no evidence. Learned counsel for the appellant prayed that only two more opportunities may be granted to the plaintiff-appellant for its evidence at own responsibility on payment of costs. The prayer has been opposed by counsel for respondents. I have carefully considered the aforesaid prayer. It is correct that proviso to Order 17 Rule 1 of the Code of Civil Procedure (in short, CPC) stipulates that only three opportunities are required to be given to a party for its evidence. However, the said provision is a rule of procedure and should not be applied with extreme rigidity, but has to be followed with some flexibility. In the instant case, the RSA No.1107 of 2008(O & M) -3- plaintiff has been non-suited merely because the plaintiff failed to lead its evidence on three dates of hearing fixed for this purpose. In my considered opinion, ends of justice would be met if the plaintiff- appellant is granted only two more opportunities for its evidence at own responsibility on payment of costs. Plaintiff's unit has been taken over by respondent No.1-defendant-Punjab Financial Corporation under Section 29 of the State Financial Corporations Act, 1951 and subsequently sold to respondents No.2 to 5 and, therefore, high stake of plaintiff is involved in the case. The unit has been sold by respondent No.1 to respondent Nos.2 to 5 for Rs.64.60 lacs. Stakes involved are thus very high. The plaintiff-appellant should not be non-suited on the basis of no evidence. For the reasons aforesaid, the instant second appeal is allowed and judgments and decrees of the Courts below are set aside. The suit is remanded to trail Court for fresh decision in accordance with law. Only two more opportunities shall be granted to the plaintiff for its evidence at own responsibility on payment of Rs.20,000/- as costs precedent, to be paid to respondent Nos.2 to 5 in the trial Court. The plaintiff may take assistance of the Court for summoning its evidence, but not more than two opportunities shall be granted to the plaintiff for its evidence even on the ground of non- service of any witness or non-appearance of any witness despite service or on any other ground whatsoever. However, if any record is summoned by the plaintiff from respondent No.1-Punjab Financial Corporation, it shall co-operate in producing the said record. Records of the Courts below be sent back at once. Parties are RSA No.1107 of 2008(O & M) -4- directed appear before the trial Court on 14.10.2010. It goes without saying that reasonable opportunity shall be granted by the trial Court to the respondents for their evidence. 20.09.2010. ( L. N. MITTAL ) A. Kaundal JUDGE