The court emphasized the necessity of a fair trial by allowing the second defendant to cross-examine the first defendant, asserting that the death of prior counsel should not hinder justice.

ORDER :

V.LAKSHMINARAYANAN, J.

These civil revision petitions challenge the order passed by the learned Principal Commercial Court at Egmore, Chennai, in the applications filed to reopen the side of the defendant and to recall DW1. These 16 revisions arise out of 8 suits that were originally presented before this Court in the year 2009. All the suits were presented for recovery of money.

2. The common plea of the plaintiff(s) is that they had paid several sums of money to the first defendant for the supply, erection and commissioning of windmills by the said defendant. The first defendant received the amount but had did not proceed further. When the plaintiff(s) called upon the first defendant to refund the amount, it washed his hands off by stating that it had sold the business, lock, stock and barrel to the second defendant and therefore, the second defendant who is answerable to the claim.

3. The plaintiff(s) Being frustrated at the manner in which the first and second defendants handled the money owed to them, came forward with the suits. The defendants were served with the summons and filed their written statement. Thereafter, the matter went for trial before the Original Side of this Court. The evidence of the plaintiff(s)were concluded, and it was listed for the evidence of the defendants.

4. It is the case of the civil revision petitioner/second defendant that their counsels, namely, Mr.Ezhilmani and Mr.Venkatraju had passed on in quick succession leaving their case undefended. The plaintiff(s), however, had cross-examined the first defendant.

5. Due to the enhancement of pecuniary jurisdiction of the City Civil Court, the suits were transferred to that Court. Before the learned City Civil Judge, the second defendant engaged their present counsel. The second defendant's counsel pleaded that he did not have any papers, as they were lost in the office of the previous counsels, who was no more. Therefore, they secured the papers afresh.

6. Prolonging the agony of the plaintiff, the suit was transferred from the City Civil Court to the file of the Commercial Court. The plaintiff(s) have submitted oral as well as written arguments and so has the first defendant.

7. When the second defendant was about to submit their arguments, it came to their notice that the first defendant had never been cross-examined by erstwhile counsels. Therefore, they filed applications to reopen and to recall DW1. The said applications were opposed by the first defendant. The learned trial Judge agreed with the first defendant and dismissed the applications. Hence, these revisions.

8. When the matter came up for admission, I requested Mr.Murali to serve the papers on the counsels, who represent the plaintiff and the first defendant in the Court below. The papers were served. Mr.M.S.Sampath appears for the plaintiff and Ms.B.Jayanthi, representing Mr.R.Shanmugam appears for the second respondent. Mr.Daniel Jaswath appears for the revision petitioner herein.

9. I heard all the parties.

10. The narration of the facts goes to show that in the crossfire between the first and second defendants, the plaintiff(s) have been waiting for a decree to be passed in the suit. The plaintiff(s) have advanced sums to the first defendant and the first defendant had sold his business to the second defendant. The issue before the Court is whether the first defendant has to reimburse the amount received from the plaintiff(s), or the second defendant has to do so or whether the liability is joint and several. In these circumstances, it is essential that the second defendant be afforded an opportunity to cross