HON’BLE SRI JUSTICE N.V. RAMANA AND HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.No.481 of 2010 Date:15-07-2011: Between: M/s. KLJ Plastics Limited, Hyderabad Rep. by its Vice-President Sri Laxmi Narayana Sunthwal …Appellant/Plaintiff And M/s. Countrywide Trading Private Ltd., New Delhi And four others …Respondents/Defendants HON’BLE SRI JUSTICE N.V. RAMANA AND HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.No.481 of 2010 JUDGMENT: (Per Hon’ble Sri Justice R.Kantha Rao,J) This C.M.A. is filed against the order dated 12.03.2010 passed in I.A.No.12 of 2010 in O.S.No.17 of 2003 by the XIII Additional Chief Judge, Hyderabad. The appellant is the plaintiff in the suit. On 17.12.2001 the suit filed by the plaintiff was dismissed for non-prosecution as a witness (PW-1) who was examined on behalf of the plaintiff company failed to appear on the relevant date for continuing the examination-in-chief. The learned trial Court having considered the conduct of PW-1 for not attending the Court for several adjournments and also the fact that the suit which is of the year 2003 could not be proceeded with on several occasions owing to the conduct of the plaintiff, dismissed the I.A.No.12 of 2010 on 12.03.2010 which was filed by the plaintiff to set aside the dismissal order dated 17.12.2009. Aggrieved by the said order, the present C.M.A. is filed. We have heard the learned counsel representing the appellant and the respondents. It was contended before the learned trial Court by the appellant/plaintiff that on 17.12.2009 when the suit was posted for further chief-examination of PW-1, PW-1 could not be present before the trial Court as he had been to New Delhi on 15.12.2009 and returned only on 13.01.2010 and the said explanation offered by the appellant/plaintiff was not accepted by the learned trial Court on the ground that in spite of the respondents’ contending that the ground was only invented, no evidence was adduced to prove the said fact and also considering the conduct of the plaintiff from the beginning in not evincing any interest in prosecuting the suit. Now the point for consideration in this C.M.A. is as to whether there are any valid grounds to set aside the order dated 17.12.2009 passed by the trial Court dismissing the suit for non-prosecution. In its order, the learned trial Court made a mention about several applications filed by the appellant/plaintiff which include amendment of the plaint i.e. I.A.No.155 of 2007, the said amendment application being dismissed by the trial Court and against the said order, the appellant/plaintiff preferring C.R.P.No.5780 of 2007 before this Court which is pending, but no stay being granted in the said C.R.P. The learned trial Court made certain observations in paragraph 8 of its order which are as follows: “As there was no stay from the Hon’ble High Court in the C.R.P., the continuous absence of PW-1 to the court is neither proper nor justified. Due to the absence of PW-1, the Court could not dispose of the matter. On 27.10.2009 the suit was adjourned to 12.11.2009 on the request of advocate for the plaintiff. From 12.11.2009 the suit was posted to 02.12.2009. On 02.12.2009 the plaintiff was called absent and there was no representation and on that suit was adjourned to 17.12.2009 on costs of Rs.200/-. On 17.12.2009 the plaintiff was called absent and the Court waited till 1.00 p.m., but of no use. On that day the junior counsel for the plaintiff reported that he paid the costs, but failed to file the proof and requested for time stating that PW- 1 was not available and he failed to assign any reason about the non-availability of PW-1.” From the conduct of the appellant/plaintiff which was revealed from the observations of the learned trial Court, we have no manner of doubt whatsoever that the plaintiff was not evincing any interest in prosecuting the suit. Owing to the conduct of the plaintiff, the suit of the year 2003 could not be disposed of by the trial Court. In spite of such conduct of the plaintiff, we are of the view that an opportunity can be afforded to the plaintiff to get the suit adjudicated on merits by imposing costs for procrastinating the trial of the suit on one ground or the other. For what all stated by us hereinabove, we allow the C.M.A. and set aside the order dated 12.03.2010 passed in I.A.No.12 of 2010 in O.S.No.17 of 2003 by the XIII Additional Chief Judge, Hyderabad on condition of the appellant/plaintiff depositing costs of Rs.10,000/- (Rupees ten thousands only) into the trial Court within one month from the date of the judgment in this C.M.A. The trial Court is directed to dispose of the suit expeditiously, preferably within a period of two months, by fixing a time-schedule. In case the appellant-plaintiff fails to co-operate with the trial, the trial Court is at liberty to proceed with the matter and dispose of the suit, on the basis of the material available on record, without adjourning the matter any further. _____________ N.V. RAMANA,J ______________ R. KANTH RAO,J Date:15-07-2011 CCM HON’BLE SRI JUSTICE N.V. RAMANA AND HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.No.481 of 2010 ( Per Hon’ble Sri Justice R.Kantha Rao,J ) Date:15-07-2011