M/.S Chitale & Sons v. M/S Chemfab Alkalis Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.04.2016

CORAM

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR CRP(PD)No.771 of 2010 M/s.Chitale & Sons Rep. by its sole representatives S.L.Chitale Having office at Dhun Buildings 827, Mount Road, Madras - 2.

..Petitioner Vs.

M/s.Chemfab Alkalis limited Registered Office at Gnananda Place, Pondicherry.

..Respondent Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the order and decreetal order in I.A.No.16095 of 2005 in O.S.No.4855 of 1996, on the file of I Assistant City Civil Court, Chennai, dated 14.03.2006. For Petitioner :Mr.V.Raghavachari For Respondent :No appearance

ORDER

This Civil Revision Petition arises against the order passed in I.A.No.16095 of 2005 in O.S.No.4855 of 1996, on the file of I Assistant City Civil Court, Chennai, dated 14.03.2006.

2. The revision petitioner herein, originally, filed a suit in C.S.No.793 of 1988 on the file of this Court and it seems that it was later transferred to the First Assistant City Civil Court, Chennai, and re-numbered as O.S.No.4855 of 1996 seeking for declaration and damages of Rs.1,01,000/-. Written Statement was already filed by the defendant denying the allegations made in the plaint. While so, the suit was dismissed for default on 22.10.2002. It is stated that Application in I.A.No.1137 of 2003 was filed for restoration of the suit and the same was also dismissed on 14.2.2003. Thereafter, I.A.No.16095 of 2005 was filed to condone the delay of 726 days in filing the restoration petition. Learned counsel for the plaintiff, Mrs.

Usha Raman, filed an affidavit in support of the application for condoning the delay stating that the delay had occurred due to her sickness. However, the defendant opposed the filing of the affidavit by the counsel instead of the plaintiff. Accepting the submission of the counsel for the defendant, the lower Court dismissed the instant Application. Hence, the plaintiff has preferred the present Civil Revision Petition before this Court.

3. Mr.V.Raghavachari, learned counsel for the petitioner would submit that after chief examination and cross-examination of PW.1 was over, the plaintiff/revision petitioner filed an Application No.19878 of 2000 for recalling PW.1 and for marking additional documents, viz., M - Books. Since the said application was allowed by the Trial Court directing the defendant to produce MBooks, the defendant filed a Civil Revision Petition No.2721 of 2001 before this Court but the same was dismissed with a direction to the defendant/respondent herein to produce M-Books. Thereafter, the matter came up for hearing several times for further evidence. In all these hearings, the counsel and witness were present, which could be evidenced from the 'A' Diary Extracts where as the defendant's counsel was not present.

Thereafter, the case had been adjourned periodically and when the case was posted on 22.10.2002, the counsel had asked her colleague to represent on her behalf when the case was called as the plaintiff also informed that they had some unavoidable site meeting and the counsel also fell ill for a month. As there was no representation on that day, the suit was dismissed for default. Thereafter, the lower Court counsel moved an Application in I.A.No.1137 of 2003 for restoration of the suit. After filing this application, she could not attend the Court as she was due for delivery on 5.2.2003 and she was constrained to take rest as per the doctor's advice from 25.1.2003 onwards.

counsel had entrusted the case to her junior to take care of the case. In her absence, her junior filed affidavit of service on 14.2.2003. Inadvertently, the affidavit of service was not filed in time on that day. Hence, the I.A.No.1137 of 2003 came to be dismissed on that day for not filing the proof of service and for nonrepresentation at the time of calling. Thereafter, the instant application in I.A.No.16095 of 2005 was filed to set aside the order dated 14.2.2003 passed in I.A.No.1137 of 2003. Since the plaintiff has a very good case and the plaintiff must be afforded an opportunity to prove their case, he prays that the delay may be condoned and the Civil Revision Petition may be allowed. In support of his contention, he relied upon the judgment of this Court in CMA.No.3047 of 2005 dated 29.01.2007, in R.M.Bedi Vs. Vijayeswari Textiles Ltd., and Federated Mercandising Group) reported in 2007 (2) CTC 231 wherein it has been held as follows:

When the suit was posted on 15.10.2003, the plaintiff and his counsel were not present and hence the suit was dismissed for default. The Counsel for the plaintiff filed I.A.No.223 of 2004 and prayed for restoration of the suit, which was dismissed for default. He has stated that the plaintiff is an old man living in Germany. He has travelled to India on many occasions to attend the Courts. The Trial could not be commenced. On the

day when the matter was listed, he could not appear inn the Court in time and the matter was dismissed for default. In support of the petition, learned Counsel on record filed an affidavit.

4. In paragraphs 11, 12 and 15 of the Judgment in Sree Rajendra Mill Ltd., Vs.IOCEE Exports Ltd., reported in 2011 (3) CTC 684, it has been held as follows:

11. In Harishankar Vs. Rukmani Devi reported in 1996 AIHC 5263 the Rajasthan High Court has held as follows:

When both parties have filed affidavit and counter-affidavit, the power must be exercised when the Court is convinced that in the interest of justice, such a course is necessary.

12. In 1990 2 BLJ 332 a Division Bench of Bombay High Court held that, "the appearance of the Counsel in a case in which he is a witness for the plaintiff is not in accordance with the interests and traditions of the Bar. If the advocate is called upon to be a witness in that very case, then it should be left to the good sense of the Advocate. It may cause even embarrassment to the Counsel himself nor he can address the Court as to the credibility of his own testimony.

15. The power under Order 19 Rule (2) CPC is discretionary. If there are bonafides in the

application, the Court need not order crossexamination of the deponent. This Court in V.P.Nagarajan Vs. Prabhavati reported in 1989 (1) L.W.543 held that "even assuming that the circumstances of the case force the counsel on record to file affidavits in support of the applications, they must take immediate steps to protect the interest of the client by not only requesting some other competent advocate to appear as Counsel in that particular matter, but also place the necessary materials before the Court to substantiate the averments made by them in their affidavits. The Court further held that, "it is the paramount duty of the advocate, who is the deponent of the affidavit to produce best evidence to prove the contents of the affidavit."

5. Heard Mr.V.Raghavachari, learned counsel for the revision petitioner and perused the materials available on record.

6. On facts, when the case was posted for trial on 22.10.2012, the learned counsel for the plaintiff as well as the plaintiff and the learned counsel for the defendant as well as the defendant were not present in the Court. Therefore, the suit was dismissed for default on 22.10.2012. Subsequently, the application filed in I.A.No.1137 of 2003 for restoration of the suit was dismissed. Thereafter, I.A.No.16095 of 2005 was filed by the

revision petitioner to condone the delay of 726 days in filing the application for restoration of the suit. It is the case of the lower court counsel that in all the hearings, the witness and herself had been present throughout, which could be evidenced from the "A" diary extracts, whereas the defendant's counsel was not present. Thereafter, the case had been adjourned time and again and it was only for one hearing she had filed an adjournment petition. When the case was posted on 22.10.2002 as a last chance for further evidence, she submitted that on that day she had asked her colleague, Mr.Manikandan to represent on her behalf when the case was called. She submitted that she had been absent from the court work for nearly a month owing to severe illness. After moving the aforesaid I.A.No.

1137 of 2003, she did not attend since she was due for delivery on 05.02.2003. She was constrained to take rest as per the doctor's advice from 25th January, 2003 onwards. She had entrusted to her junior to take care of the case in her absence and filed affidavit of service on 14.02.2003. Inadvertently, the affidavit of service was not filed in time on that day. Hence, the case was dismissed for not filing the proof of service and for nonrepresentation at the time of calling. The Court below dismissed the application on the ground that the petition filed by the counsel instead of the plaintiff is not maintainable.

7. Considering the above facts and circumstances of the case and in the light of the aforesaid decisions, the affidavit filed by the counsel by stating that to protect the interest of the client, she had filed an affidavit and explained the reasons for non-appearance on the hearing date, with a view to give an opportunity to the revision petitioner, this Court deems it appropriate to set aside impugned order on payment of costs by the revision petitioner.

8. Accordingly, this Court is inclined to pass the following orders:- (a) As far as costs is concerned, the revision petitioner is directed to pay a sum of Rs.10,000/-(Rupees Ten Thousand only) to the Tamil Nadu Mediation and Conciliation Centre, Chennai, within a period of two weeks from the date of receipt of copy of this order.

(b) On payment of costs, the impugned order passed in I.A.No.16095 of 2005 dated 14.3.2006 is hereby set aside, and the delay application in I.A.No.16095/2005 in O.S.No.4855 of 1996 is allowed.

(c) In the event of the suit is restored, the Trial Court is directed to dispose of the Suit in O.S.No.4855 of 1996 on merits

and in accordance with law, as early as possible. (d) the Civil Revision Petition is allowed. No order as to costs.

18.04.2016 gv/asvm To The First Assistant Judge, City Civil Court, Chennai.

D.KRISHNAKUMAR,J.

Gv CRP(PD)No.771 of 2010 18.04.2016