JUDGMENT

Sanjiv Khanna, J. (Oral)--This intra-Court appeal impugns order dated 25th October, 2016, whereby I.A. No.13305/2016, filed by the appellant, who is plaintiff in CS (OS) No.806/2005, under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (Code, for short), has been dismissed by the learned single Judge.

2. The appellant had filed the aforesaid suit for injunction against infringement of trademark and passing off in respect of mark `Postman'. Vide order dated 12th December, 2007, the application filed by the appellant being I.A. No. 4575/2005 under Order XXXIX Rule 1 and 2 of the Code, was allowed. This order was thereafter made subject matter of challenge by the first respondent and the second respondent in FAO (OS) No.141/2008.

3. During pendency of FAO (OS) No.141/2008, CS (OS) No. 806/2005 was dismissed by the learned single Judge vide judgment dated 24th December, 2010, primarily on the ground that the appellant had not led evidence. Another observation made was that the appellant was trying to prolong the trial on one pretext or the other in view of the interim stay granted in their favour.

4. In view of the said dismissal of the suit, respondent Nos.1 and 2 withdrew their appeal, FAO (OS) No.141/2008.

5. Subsequently, RFA (OS) No. 19/2011 was preferred by the appellant against the judgment dated 24th December, 2010. Additionally, application C.M.No.3705/2011 was also preferred for staying the operation of the aforesaid judgment and to restore the temporary injunction, which application was dismissed vide order dated 26th April, 2011 by the Division Bench. Special Leave to Appeal preferred against the adverse order in C.M. No.3705/2011 was dismissed by the Supreme Court vide order dated 18th July, 2011 observing that the Supreme Court was not inclined to interfere with the order. However, the High Court was requested to dispose of RFA (OS) No. 19/2011 as expeditiously as possible and in any event within one year from the date of communication of the order.

6. RFA (OS) No. 19/2011 was thereafter allowed vide judgment dated 27th July, 2012, observing that the suit should not have been dismissed as appellant had filed an in-chamber appeal against the order dated 16th December, 2010, passed by the Joint Registrar closing the evidence of the appellant. The said appeal was still pending before the learned single Judge when the judgment dated 24th December, 2010 was pronounced. The judgment dated 24th December, 2010 had incorrectly recorded that no appeal was pending before the learned single Judge against the order of the Joint Registrar dated 16th December, 2010 closing the right to lead evidence.

7. In view of the aforesaid position, the Division Bench disposing of RFA (OS) No. 19/2011, had directed:

"27. Considering the over-all facts and circumstances of the matter, we set-aside the order dated 16th December, 2010 passed by the Joint Registrar. Consequently, the subsequent judgment passed on 24th December, 2010 dismissing the suit of the plaintiffs does not survive and hence, the same is set-aside. Suit as well as interim application is restored to the original position.

28. The present appeal is allowed, but subject to cost of Rs.1 lac which is imposed upon the plaintiffs due to the reason of continuous default on the part of the plaintiffs for non-production of evidence in time. We also expedite trial in the matter.

29. We appoint Sh. S.M. Chopra, Retired Additional District Judge as a Court Commissioner to record the evidence of the parties. The plaintiffs shall be granted last and final opportunity by the Court Commissioner to produce the evidence before him at their own. If necessary, the plaintiffs are allowed to take dasti notice for summoning of witness from the office of Court Receiver. Parties shall not take unnecessary adjournment. The Court Commissioner would make his endeavour to complete the evidence of the parties within the period of 4-6 months. The entire fee of the Local Commis