IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 285 of 2003 Date of decision: 19.11.2008 Abdul Gaffur Wani ... Appellant Versus H.P. State Electricity Board & Anr. ….. Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant : Mr. J.S. Bhogal, Senior Advocate with Mr. Suneet Goel, Advocate. For the respondents: Mr. Baldev Singh, Advocate. V.K. Ahuja, J. (Oral): This is a Regular First Appeal filed by the appellant against the judgment and decree of the Court of learned District Judge, Shimla, dated 21.7.2003, vide which the suit filed by the appellant for recovery of Rs.7,30,000/- as against the respondents, was dismissed by the learned trial Court, by passing judgment under Order 17 Rule 3 C.P.C. Briefly stated, the facts of the case are that the appellant as plaintiff filed a suit for recovery of Rs.7,30,000/-. It was alleged that the plaintiff was a contractor and defendant No. 1 through defendant No.2 had invited tenders for the work of loading, unloading and stacking of materials at Maliana store of the defendants. A tender was submitted by the plaintiff on 24.9.1997, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 which was accepted by defendant No. 1 through defendant No. 2 and an agreement was also entered into in between the parties. It was further alleged that the plaintiff did the works awarded to him for loading, unloading and stacking of all the material and he alleged that in all the plaintiff had worked and was entitled to a sum of Rs.11,13,793.09. According to the plaintiff, he was paid a sum of Rs.4,11,021.70 only and the rest of the amount was not paid to him. Hence, the suit for recovery of the amount alongwith interest and costs. Defendants admitted that an agreement was entered into in between the parties as a result of the tender invited, but they pleaded that no amount is due to the plaintiff from the defendants and the amount which was due, has been paid to him after due verification. On the pleadings of the parties, the following issues were framed on 25.5.2000 :- 1. Whether plaintiff executed the works for defendant in the amount of Rs.11,30,793.09 as alleged? …OPP 2. Whether the plaintiff has not been paid the balance amount of the works executed by him amounting to Rs.7,26,951.39 as alleged? … OPP 3. Whether defendant is liable to pay any amount to the plaintiff, if so, to what extent? … OPP 4. Whether the plaintiff is entitled to interest, if so, at what rate? … OPP 5. Relief. The case was fixed for the plaintiff’s evidence and he was given several opportunities but he did not lead any evidence. Accordingly, on the date when the impugned judgment was passed on 21.7.2003, the learned trial Court proceeded to close the evidence 3 of the plaintiff and dismissed the suit of the plaintiff in full. Being aggrieved, the plaintiff has filed the present appeal. I have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned counsel for the appellant were that during the hearings of the case, the plaintiff had served a notice upon the defendant on 11.9.2002 asking for certain documents which were required for just decision of the case. A perusal of the record shows that the documents were supplied to the plaintiff during the proceedings in the Court and thereafter, the case was fixed for plaintiff’s evidence for 21.7.2003. However, on that date, neither the plaintiff was present nor any steps were taken by the plaintiff to summon any witness and accordingly, the learned trial Court closed the evidence of the plaintiff under the provisions of Order 17 Rule 3 C.P.C. and dismissed the suit of the plaintiff. The learned counsel for the appellant had submitted that the opportunities were given to the plaintiff for leading his evidence but since only one opportunity was given after the documents were supplied to him in the Court, the plaintiff could not produce the evidence and, therefore, one opportunity may be given subject to costs. It is clear from a perusal of the record that the first date fixed for evidence by the learned trial Court was 4.6.2002, on which date, it was observed by the Court that the copies of relevant documents have not been supplied by the defendants, therefore, the plaintiff submitted that the witnesses could not be summoned. This oral prayer of the plaintiff was accepted by the learned trial Court and the case was adjourned to 5.10.2002. In between, it appears 4 that notice under Order 12 Rule 8 C.P.C. was issued but the copy of the said notice is not on the record to show that when the same was issued. On 5.10.2002, it was again observed by the Court that since copies of documents have not been supplied as stated on behalf of the plaintiff, therefore, time was prayed and the case was adjourned for 6.5.2003. On 6.5.2003, it was observed by the Court that the documents have been supplied by the defendants in the Court today and therefore, it shows that the notice under Order 12 Rule 8 C.P.C. must have been issued prior to this date, though the exact date is not on record. Therefore, the case was fixed for plaintiff’s evidence on 21.7.2003, on which date, neither the plaintiff was present nor any witness was summoned and accordingly the suit was dismissed. From the above discussion, it is clear that on both the dates fixed i.e. 4.6.2002 and 5.10.2002 as observed by the Court that on the prayer made by the plaintiff, that copies of the documents had not been supplied, therefore, it appears that the plaintiff had not summoned the witnesses. The documents in question on the prayer made by the plaintiff, were supplied to him on 6.5.2003 only as per the order sheet and thereafter, the case was adjourned for 21.7.2003. It follows from the above discussion that only one effective date for plaintiff’s evidence was granted. In the circumstances when the evidence could not be lead earlier due to non supply of documents and only one effective date for evidence of the plaintiff was given by the learned trial Court, in my opinion, the learned trial Court should have given an opportunity to the plaintiff to lead his evidence subject to heavy costs. Therefore, the present appeal deserves to be accepted. 5 I may point out that in the grounds of appeal, the appellant has also taken a plea that he was present on the date of hearing i.e. on 21.7.2003, but the order sheet clearly shows that the plaintiff was not present on that date. Such a prayer, in my mind, has been made just to make out a case, which is not supported by any documents. In case the plaintiff was present on the date fixed for hearing, he could have made a request for marking his presence or could have submitted an application immediately after the pronouncement of the judgment that he is present today and his presence may be marked, which fact should have been proved. It appears that in fact the plaintiff was not present on the date fixed for hearing, therefore, the plea that the plaintiff was present on the date fixed for hearing, has been made just to make out a case. However, keeping in view the facts and circumstances of the case, only one opportunity is being given to lead evidence to the plaintiff and the plaintiff/appellant is being permitted to lead his evidence and only one opportunity shall be granted to him to adduce his evidence subject to Rs.5,000/- as costs, which shall be paid to the H.P. High Court Bar Association Welfare Fund. Costs be deposited by the plaintiff on or before 30th November, 2008. The case is remanded to the learned trial Court, who shall give one opportunity to the plaintiff to lead his evidence and the plaintiff shall be permitted to take Dasti summons for the service of the witnesses. No further opportunity shall be given except in case the working day is declared as a holiday. Parties through their counsel are directed to appear before the trial Court on 15.12.2008 and the trial Court shall try to dispose of the case on or before 31st March, 2009, as far 6 as possible. In case, costs are not paid on or before 30th November, 2008, the appeal shall be deemed to have been dismissed. ( V.K. Ahuja ), November 19, 2008 Judge (BSS)