CENTRAL BOARD OF SECONDARY EDUCATION Vs. SOM SUDHA PRAKASHAN
LAWS(DLH)-2007-4-150
HIGH COURT OF DELHI
Decided on April 27,2007

CENTRAL BOARD OF SECONDARY EDUCATION Appellant
VERSUS
SOM SUDHA PRAKASHAN Respondents

JUDGEMENT

A.K.SIKRI, J. - (1.) The appellant herein had filed the suit for recovery of Rs. 1296779/- against the respondent herein. The suit was field in February, 1998. However, later on due to enhancement of pecuniary jurisdiction of the lower court, the suit was transferred to the District Judge. Issues were framed by the learned ADJ, to whom the case was assigned, on 17.5.2004 As the plaintiff did not lead evidence thereafter in spite of various opportunities, on 24.2.2006 the evidence of the plaintiff was closed. The counsel for the defendant stated that he also did not intend to lead any evidence as the plaintiff had failed to give evidence in support of its case. The matter was directed to be fixed for arguments on 4.3.2006. On that date, the appellant herein filed the application for recalling of the order dated 24.2.2006 whereby its evidence was closed. This application of the appellant was dismissed and the learned trial court pronounced the judgment. Vide impugned judgment and decree dated 4.3.2006, the suit of the appellant has been dismissed. Feeling aggrieved, the present appeal is filed.
(2.) Learned counsel for the respondent has argued that the order of the learned trial court is self-speaking as it records that number of opportunities were given to the appellant after framing of the issues to lead the evidence. Not only the appellant failed to lead evidence, the suit was even dismissed in default on an earlier occasion i.e. on 18.3.2005. On the application of the appellant under Order 9 rule 9 CPC, the suit was restored on 20.7.2005 but even thereafter the appellant failed to file affidavits of its witnesses. The court was forced to give last opportunity but that also did not make the appellant wiser. In these circumstances no choice was left with the learned ADJ but to close the evidence and proceed to pronounce the judgment.
(3.) When the matter is looked into in the aforesaid manner suggested by the learned counsel for the respondent, probably no fault would be found in the impugned order. However, the appellant has some explanation because of which case could not be prosecuted by the appellant with the due diligence that is normally expected. Keeping in view this explanation, we are of the opinion that the appellant is entitled to at least one further opportunity to lead the the evidence.;


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