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2009 Supreme(SC) 648
Supreme Court of India
THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE & THE HONOURABLE MR. JUSTICE H.L. DATTU
M/s. Foodworld Super Markets Ltd. & Another Versus Shri H. Sujan Singh & Others
Civil Appeal No.2380 of 2009 (Arising out of SLP(C) No. 22584 of 2008)
Decided On : 13-04-2009
IMPORTANT POINT
Delay or non-appearance, if bona fide and satisfactorily explained, should be condoned.
Headnote:Administration of Justice – Judicial propriety – Defendant seeking adjournment for cross-examining plaintiff – Not turning up when case called up – Seeking one more chance – Explaining the reason for not turning up for cross-examination – Reasons not only satisfactory and also bona fide – In view thereof, defendant’s right to cross examine the plaintiff cannot be foreclosed. (Para 9)
Facts of the case:
The appellant is the tenant of a business premises. The appellant is the defendant in the ejection suit before the trial court.
The respondents herein are the landlords who have filed a suit for eviction of the defendants from the suit schedule premises.
The Suit was posted for evidence of the plaintiffs. The plaintiff (P.W.1) has filed his affidavit by way of his evidence. On the request made by learned counsel for the defendant, the matter had been adjourned twice for cross examination of plaintiff (P.W.1) and finally, it was posted on 28.2.2008. Since the learned counsel for the defendant was not present before the court, when the matter was called out, the learned trial Judge has closed the evidence of the plaintiff and has posted the matter for the evidence of the defendants, if any.
Subsequently, the defendants have filed application (I.A.No.2) for recalling the order dated 28.2.2008 and permit them to cross examine the plaintiff (P.W.1).
The trial Judge has rejected the application (I.A. No. 2).
The defendants had carried the matter before the High Court to afford one more opportunity to the defendants to cross examine plaintiff (P.W.1).
The writ court has dismissed the writ petition.
Finding of the Court:
Impugned judgment cannot be sustained.
Result:
Appeal allowed. Matter remitted to trial court.
Judgment :
Leave granted.
2) Since the issue involved in this appeal lie in a narrow compass, by consent of both the learned counsel, the matter is taken up for final hearing.
3) The appellant is the tenant of a business premises measuring 4000 Sq. fts. situated at No. 1133, HAL 2nd Stage, Corporation Ward No. 74, Bangalore. The appellant is the defendant before the trial court.
4) The respondents herein are the landlords. They have filed a Civil Suit O.S. No. 1894 of 2007 for ejectment of the defendants from the suit schedule premises.
5) After exchange of pleadings, the Suit was posted for evidence of the plaintiffs. The plaintiff (P.W.1) has filed his affidavit by way of his evidence. On the request made by learned counsel for the defendant, the matter had been adjourned twice for cross examination of plaintiff (P.W.1) and finally, it was posted on 28.2.2008. Since the learned counsel for the defendant was not present before the court, when the matter was called out, the learned trial Judge has closed the evidence of the plaintiff and has posted the matter for the evidence of the defendants, if any.
6) Subsequently, the defendants have filed application (I.A.No.2) for recalling the order dated 28.2.2008 and permit them to cross examine the plaintiff (P.W.1). In the affidavit filed along with the application, they have assigned the reasons for not being present before the court when the case was called out twice.
7) The learned trial Judge not impressed by the explanation offered by the defendants, has rejected the application (I.A. No. 2). Being aggrieved by the said order, the defendants had carried the matter by filing a Writ Petition under Article 227 of the Constitution of India before the High Court to issue a writ in the nature of certiorari and direct the trial court to afford one more opportunity to the defendants to cross examine plaintiff (P.W.1).
8) The writ court has dismissed the writ petition. Hence, this appeal.
9) We have heard learned counsel for the parties to the lis. We have also carefully perused the affidavit filed with the application (I.A.No. 2) to recall the order dated 28.2.2008, discharging P.W.1 from cross examination. In our considered view, the explanation offered by the defendants appears to be not only satisfactory and also bonafide. This aspect of the matter is not properly appreciated both by the trial court and the High Court. In our view, the foreclosure of the defendants right to cross examine the plaintiff (P.W.1) has resulted in grave prejudice to the right of defence of the defendant/appellant herein. Therefore, we cannot sustain the impugned orders.
10) In view of the above discussion, we allow this appeal and set aside the impugned orders. Now a direction is issued to the trial court to recall the plaintiffs witness and permit the defendants/appellants to cross examine plaintiffs witness (P.W.1) in O.S. No. 1894 of 2007. Since the matter is pending from last two years, we direct the trial court to dispose of the suit as expeditiously as possible at any rate within an outer limit of six months from the date of receipt of this courts order. No order as to costs.
