1 48 fa.116.10 anr ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 116 OF 2010 WITH CIVIL APPLICATION NO. 1922 OF 2010 Vijay Haribhau Gaikwad. ... APPELLANT Vs. Baburao Kisan Ghongade. ... RESPONDENT -------- Mr. M.S.Lagu for the Appellant. Mr. S.P.Shinde for the Respondent.. -------- CORAM : A.M. KHANWILKAR and A.A. SAYED, JJ. DATE : 06 th August, 2010. P.C. 1 Heard the learned counsel for the parties. 2 By consent, appeal is taken up for final disposal forthwith. 3 This appeal takes exception to the judgment and decree passed by the Joint Civil Judge, Senior Division, Nashik dated 20 th November, 2009 in Special Civil Suit No. 46 of 2009. The suit was filed by the Appellant for relief of specific performance in relation to agreement 2 48 fa.116.10 anr executed between the parties on 4 th July, 2000 concerning Gut Nos. 1769 /3, 1771 /1 /1 and 1770 /3. In the said suit, preliminary issue regarding limitation was raised by the Respondent-defendant. The Court wanted to decide the said issue as preliminary issue. Accordingly, the parties decided to adduce evidence with regard to the said issue as noted in the order dated 31 st July, 2009. Thereafter, the matter was adjourned from time to time on account of inability of the plaintiff to produce documentary or oral evidence with regard to the issue under consideration on five different dates. As a matter of fact, roznama indicates that either plaintiff or his advocate or both failed to appear before the Court on the relevant dates. Eventually, on 05 th November, 2009 the Court recorded the fact that the evidence of plaintiff is closed and called upon the defendant to produce his evidence. The defendant instead requested to proceed with the hearing of the suit as the defendant was not interested in producing any evidence. Accordingly, the trial Court on the basis of the averments in the plaint proceeded to decide the issue of limitation against the plaintiff. It has held that considering the fact that permission was granted by the Collector on 27 th December, 2001 in view of the terms contained in the agreement to sell, the plaintiff ought to have completed the sale within 11 months from that date. On that assumption, the Court further went on to observe that the suit ought to have been filed within three years from 27 th November, 2002. Whereas, it has been filed on 18 th January, 2008. On this finding, the Court has dismissed the suit being barred by limitation. 3 48 fa.116.10 anr 4 This decision is the subject matter of challenge in the present appeal. The learned counsel for the Appellant in all fairness concedes that no justification can be given for the non appearance of the plaintiff or his advocate on the relevant dates and also of the fact that the plaintiff did not produce any evidence though opportunity was given to the plaintiff. However, it is submitted that the plaintiff be given one opportunity, in the interest of justice and if necessary, the plaintiff would compensate the Respondent-defendant for the costs already incurred by the defendant for pursuing the matter before the lower Court and before this Court. Although, the learned counsel for the Respondent initially opposed grant of any indulgence to the Appellant. However, submitted that exemplary costs be imposed on the plaintiff for the default committed before the lower Court, if one opportunity is to be granted to the plaintiff. 5 Taking overall view of the matter, we accept the submission of the Respondent and while setting aside the impugned judgment and decree, direct the Appellant-plaintiff to pay costs quantified at Rs.20,000/- to be paid to the Respondent-defendant within four weeks from today. Failure to comply with this condition, would entail in recall of the indulgence and/ or dismissal of the appeal. However, on the other hand, if costs is paid to the Respondent-defendant within specified time and proof thereof produced before the trial Court, the trial Court may proceed with the trial on its own merits in accordance with law from the stage of 4 48 fa.116.10 anr allowing the plaintiff to produce evidence with regard to the issue of limitation, if any. We accept the assurance given by the Appellant through counsel that on all future dates, the Appellant shall personally as well as his advocate will regularly appear and even if one default is committed, the trial Court would be free to once again dismiss the suit by adopting the same reason on the assumption that the plaintiff failed to produce any evidence documentary or oral in respect of the indulgence given to the plaintiff. Now that the matter is relegated before the trial Court to the stage of allowing plaintiff to file his evidence on the matter in issue, even the defendant will be free to produce his evidence oral and documentary and not be bound by the statement made earlier. 6 The appeal is disposed of on the above terms. The parties shall appear before the trial Court on 7 th September, 2010 when directions can be passed by the trial Court, subject, however, Appellant paying the costs within specified time as indicated earlier. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]