Sr. No. Dale f % + OrdeiTS 11.11.2003 Present: Mr.Haiish Malhotra for the Appellant. Mr.H.K. Pathak for the Respondent. FAONo.26/2002 The plaintiff had filed suit for possession and mandatory and permanent injunctionon the allegationsas contained in the plaint. Issues in the case wereframed on 15.7.1999and thaeafter despite repeated opportunities and costs imposed upon the plaintiff, evidence was not led. On 12.8.2000, when the matter was listed for evidence of the plaintiff no body appeareddespite the case having been called twice and tlie same was, accordingly, dismissed in default at 2.50PM. The plaintiff moved an application under Order 9 Rule 9 CPC for restoration of the suit on the allegations that two of his witnesses alongwith the plaintiff were piesent in Court on 21.8.2000 but as they were looking for theii" adv(x:ate,they did not appear when the matter was called and consequently the same was dismissed in default. It is also stated in the application that counsel for the plaintiffhad also reached the Court firetly at 10.30AM but the matterhad not yet been called and again intermittently but every time the case waskept in waiting. It is staled that die counsel again reached the Court at 2.00PM but the case was not called and when he had goneout to attendothercases,the matterwasdismissedin defaultin his absence. The application is supported by the affidavit of one Mr.Sanjay Jain who is stated to be one of the witnesses and is the Manager of the plaintiff company. Reply to the application was filed by the respondent and it was stated that tlieconduct of theplaintiffs was such that the same did not call for any equitable relief in their favour. It is submitted that despite costs of Rs.3500/- having been SHRl SHYAMSALESJ)2-03 ^ •. i-m - -v '• . •A.M. Digitally Signed By:AMULYA Signature Not Verified Sr. No. Date Orders imposed upon the plaintiffs, tliey did not produce any evidence and as no one appealed in the Court till 2.50PM on 21.8.2000, the Court had no option but to dismissthe suit in defailt. On these pleas being taken by the partiesthe Trial Court by the impugnedorder dismissed the applicationof the appellant under Order9 Rule 9 CPC. It was held by the Trial Court that it was unbelievable that the counsel was presentin Court till about2.45PMand wasabsent for only about 15 minutesduring which the case was called and was dismissed becauseof non-appeaianceof any one on behalfof the plaintiff. Accordingto the Court,nothingpreventedthe plaintiffto appear before the Courtand request the Court to wait for the counsel but as even the plaintiffhad not appeared,he was unableto believethat they were pieventedbyany reason from appearingwhen the matter was called for hearing. Aggrievedby this order,the appellanthas filedthe presentappeal. When notice of appeal was issued to the respondent it was obsei-vedby the Court that it was not veiy much satisfiedby the conductof the appellantyet in order to do substantialjustice between die parties and in view of the undeitaking given by learned counsel for the appellant that he would examine his witnesses on a date to be fixed by the Courtand would not seekany furtheradjournmentthe Court subject to the appellant depositing a sum of Rs.5000/- as costs directed notice to be issuedto therespondent. Thecontentionof learnedcounselfor thelespondentis that "it is the cas^;theplaintiffdeliberatelyavoidingthe Courtonly with aview to hai-ass and blackmailthe respondentand the absenceof the plaintiffwas not due to any bonafideerror or due to the counselbeingbusyin other Court. It is submittedthat a deliberate^tempt has been made by the appellantto delay theproceedingsso as to harass the respondent. I have carefully consideiisd the arguments of learned counsel for the paitiesand have also gonethroughthe Trial Courtrecord. As obsei-vedby the Court SHRI SHYAM SALES 02-03 Sr. No. Date i SHRI SHYAM SALES 02-03 Orders on 2.1.2002, the conduct of the plaintiffe before the Trial Court is not very satisfactoiyand repeated adjournmentshave been taken by them for-producing evidence. However,I am oftheview that rightsof ihe partiesshouldnot bedecided on technicalities but an endeavour should be made to decide the same on merits. In ordertodo substantialjusticebetween the parties,sometimesit becomenecessaryto grantadjournmentstoa partyand not dismissthe matteron a technicalgroundofthe evidencebeingnot present. In my opinion,the respondentscan be compensatoryby the delay in disposalof the case and it is not that any iixeparableinjuiy would be causedincaseanopportunityis giventothe plaintifftoproduceevidence. Moreover, befoierejectingthe pleaoftheappellantsthat the witnesseswei^presentin Courton 21.8.2000,and theydidnotappearin Court when the matterwas calledfor hearing,as they werelookingfor theii"counsel,in my opinion,the TrialCourtshouldhave given an opportunityto the plaintiffsto lead evidence. Be that as it may, in order to do substantialjusticebetweendie patties,Iam of the view thatone moreopportunitycan be grantedto the appellanttoproduceits entitleevidenceon adate to be fixed by the Court. I, accordingly,allow this appeal, set aside the impugned order and restorethesuittoitsoriginalnumbersubject,however,tothepaymentof Rs.SOOOAas costsanddir-ect theTrial Courttogive oneopportunityto theplaintiffstoproduceits entireevidenceon a dateto be fixed by the Court. It is madeclearthat incaseeither theentirecostsarenot paid to therespondenton thenextdateofhearingortheentire evidenceoftheappellantisnot presenton thedatetobefixed by the TrialCourt, tiie Tr-ial Court would be at liberty to close the evidenceof the appellantwithout any furtherreference. With theseobservations,thisappealstandsdisposedof. "•nie partiesare directedto appear before the Trial Court on 15.12.2003 when it will fix a date for recordingthe evidenceof the appellants. The appellants Sr. No. Date i SHRI SHYAM SALES 02-03 Orders can withdrawtlieamountof Rs.5{XX)/-lyingin this Courtand pay entirecosts to the respondenton thenextdateof heating. TheTrialCourtlecordbesentbackimmediately. November 11, 2003 "ns' r' (S.K.MAHAJAN) JUDGE ci-M q':',?,?»)«• cn [Si c n 5 ^ c , &-= . T:\. i '• '•V (HLI f ivi