JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

CM APPL.34690/2023 (exemption) in RFA(COMM) 138/2023 Exemption allowed subject to all just exceptions.

CAV.337/2023 in RFA(COMM) 138/2023 Since learned counsel for respondent/caveator enters appearance, caveat stands discharged.

RFA(COMM) 137/2023 & CM APPL.34682/2023 (stay), RFA(COMM) 138/2023 & CM APPL.34689/2023 (stay)

1. Appellant impugns judgments dated 15.04.2023, whereby, the Suit of the defendant has been decreed and a decree for recovery of money has been passed.

2. Learned counsel for appellant submits that the right of the appellant to cross-examine the witnesses and to lead defendant evidence was closed on the ground that the dates stipulated for recording of evidence had been exhausted. He submits that grave prejudice has been caused to the appellant and the Trial Court has erred in closing the right of the appellant to cross-examine witnesses of the respondent/plaintiff.

3. Issue notice. Notice is accepted by learned counsel appearing for respondent/caveator.

4. With the consent of the parties, the appeals are taken up for final disposal today.

5. Perusal of the record shows that the issues in the Suits were framed on 06.12.2022. The Trial Court directed the parties to file list of witnesses within 15 days and appointed a Local Commissioner to record the evidence of the parties. Dates of 10th, 12th, 13th, 18th and 25th January, 2023 were fixed for plaintiff evidence and 12th, 13th, 18th, 23rd January, 2023 were fixed for defendant evidence. The returnable date before the Court for receiving the evidence of the parties, final arguments and report of the Local Commissioner was 08.02.2023.

6. Perusal of the schedule fixed by the Court shows that the Court, at the very outset, committed an error. The dates for plaintiff and defendant evidence are common. The Court seems to have fixed the matter for defendant’s evidence even prior to commencement and conclusion of the plaintiff’s evidence.

7. On 10.01.2023, the evidence of the plaintiff’s witness PW-1 was filed but PW-1 was not present for tendering the evidence. The matter was thereafter taken up on 12.01.2023 when the Local Commissioner noticed that exhibit marks had not been mentioned in the evidence affidavit. The documents were exhibited by the witness during his examination-in-chief. Thereafter the case was adjourned by the Commissioner to 13.01.2023 at 2:30 pm. On the request of counsel for the defendant/appellant, the date 13.01.2023 was cancelled and the matter was thereafter listed on 18.01.2023.

8. On 18.01.2023, the Commissioner noticed that both the parties had filed their list of witnesses and accordingly, arguments were heard for taking on record the list of witnesses which were then directed to be taken on record. Thereafter part cross-examination of PW-1 took place. The matter was thereafter taken up by the Commissioner on 23.01.2023 when PW-1 was further cross-examined and then listed on

25.01.2023 when the Commissioner noticed that the dates originally fixed by the Court were exhausted and the matter was place before the Court on 08.02.2023.

9. On 08.02.2023, the Court noticing the above proceedings observed that as the dates, which had originally been agreed upon had been exhausted held that the defendant was wasting the time of the Commissioner and forcing the plaintiff to pay Rs.5,000/- to the Local Commissioner for each date without proper utilization. The Court imposed a cost of Rs. 50,000/- on the defendant/appellant and directed the defendant to deposit the cost the very same day. Since the Appellant failed to deposit the cost on the same date, the defense was struck off and the case was listed for final arguments on 15.02.2023.

10. Perusal of the record as well as the order sheets shows that the Trial Court has acted in a grave haste and without appreciating the actual proceedings imposed cost on the defendant and held that the defendant/appellant had wasted the time of the Commissioner.

11. The initial order dated 06.