- (1.) This appeal is directed against the judgment dated 1st March, 2010 of the Learned Single Judge allowing the application for modification of the orders dated 8th April and 4th September, 2008 in Civil Suit No. 217 of 2006.
(2.) The suit was filed by respondent No. 1 herein "plaintiff" against the present appellant, "appellant" or "defendant No. 2" and three other defendants claiming money decree and other consequential reliefs. Defendant No. 2 in the suit (appellant herein) filed its written statement and, on the ground that the plaintiff was not taking any steps in expediting hearing of the suit, defendant No. 2 made application being G.A. No. 990 of 2008 seeking directions upon the plaintiff to file affidavit of documents and in default the suit be dismissed. The Learned Single Judge passed order dated 8th April, 2008 disposing of the application in the following terms: This is an application for peremptory order of discovery. The plaintiff has been served but is not represented. Documents should be discovered within a period of four weeks from date failing which the suit will stand dismissed for default. Inspection will be taken forthwith upon documents being discovered and the parties will take the suit ready for hearing within a period of six weeks from date.
(3.) The plaintiff, thereafter, made application being G.A. No. 2839 of 2008 on 12th August, 2001 seeking restoration of the suit and for recalling the order dated 8th April, 2008 on the ground that the plaintiff did not know about the said order. By order dated 4th September, 2008, the Learned Single Judge allowed the application and extended the time for filing affidavit of documents till 10th September, 2008. Learned Single Judge also awarded costs assessed at Rs. 50 GMs. The order read as under : The delay in filing the application is condoned. By the order dated April 8, 2008, a direction was given for documents to be discovered within a period of four weeks from that date. The order provided that failing documents being discovered within such time, the suit will stand dismissed. The affidavit of documents has been kept prepared by the plaintiff. The order dated April 8, 2008 is modified by extending the time for affidavit of documents to be filed till September 10, 2008. Inspection forthwith thereupon. In the event documents are not disclosed by the extended time, the default clause in the order dated April 8, 2008 will become operative.;