The court upheld the importance of substantial justice over technical procedural defaults, allowing an additional opportunity for witness cross-examination to uphold fairness in litigation.

JUDGMENT

CM(M) 271/2022

1. By an order dated 18th July, 2018, passed in CM(M) 752/2018 and CM Nos. 26905-26906/2018, this Court directed grant of one opportunity to the petitioner, as the defendant in CS 618533/2016, to cross examine PW-2.

2. It appears that, thereafter, certain attempts at settlement were explored between the parties, but that, on 22nd November, 2018, the present respondent (the plaintiff in the suit) informed the learned Additional District Judge ("learned ADJ"), that amicable resolution had failed. The learned ADJ, thereupon, fixed the matter on 6th December, 2018 for allowing the petitioners-defendant an opportunity to examine PW-2.

3. There was no appearance before the learned ADJ on 6th December, 2018, whereupon, the learned ADJ proceeded to discharge PW-2 and closed the opportunity of the petitioner to cross examine him.

4. The petitioner, thereafter, moved an application before the learned ADJ under Order IX Rule 7 of the CPC, seeking recall of PW-2 so that the petitioner could cross examine him. It was submitted, in the said application, that the date of 6th December, 2018 had been wrongly noted by the clerk of the Counsel of the petitioner, who had appeared on the petitioner's behalf before the learned ADJ on 22nd December, 2018 as 7th December, 2018. An affidavit of the Counsel vouchsafing this fact was also filed with the application.

5. While the impugned order dated 23rd November, 2021 rejects the said application of the petitioner, preferred under Order IX Rule 7, the reasoning in the impugned order is to be found in the following passage:

"Before, discussing this application, there are some orders to be discussed. The court passed an order on 25.05.2018 in which the opportunity of defendant, to cross-examine PW2 Mayank Gupta was closed. This order was challenged by the defendant in Hon. High Court. Hon. High Court vide order dated 18.07.2018 allowed the defendant to cross-examine PW2 Mayank Gupta for one date only. It was also observed "no adjournment be sought by the defendant for cross-examination of the said witness as well as of PW-2". However when this witness PW2 was present on 06.12.2018, none appeared on behalf of defendant and the court closed the opportunity of the defendant to cross examine PW2. In this application, defendant had taken the plea that the clerk noted down wrong date of hearing i.e. 06.12.2018 instead of 07.12.2018.

No affidavit of this clerk filed. On the other hand advocate himself filed his affidavit.

Considering the totality of the circumstances, the plea taken by the defendant regarding noting down of wrong date of hearing does not appears to be bona fide and rejected."

6. Stricto sensu, it cannot be said that the learned ADJ has acted illegally or incorrectly, in rejecting the petitioner's application. That said, however, substantial justice requires, at every stage, to trump technical considerations. Ms. Stuti Gupta, learned Counsel for the respondent has contended, with all the emphasis at her command that the petitioner has been repeatedly remiss in prosecuting the proceedings before the learned ADJ as far back as 2007, when they were proceeded ex parte for the first time. She submits, therefore, that such an indolent litigant who take proceedings of the Court for granted, is not entitled to any equitable relief from the Court.

7. In State Bank of India v. Chandra Govindji, (2000) 8 SCC 532, the Supreme Court was concerned with a situation in which a litigant had taken repeated adjournments from the Court and, on an adverse order being passed against the litigant consequent to rejection of the last adjournment, the Supreme Court was petitioned. The opposite party drew