Scindia Investments Pvt Ltd v. Scindia Potteries and Services Pvt Ltd

1. The petitioner has filed a civil suit seeking declaration and permanent injunction way back in the year 1990.

2. The above said suit was filed on the original side of this Court. However, with the change in the pecuniary jurisdiction, the suit, eventually, got transferred to the District Courts.

3. The petitioner was required to lead evidence on 08.11.2017 but the proxy counsel for the plaintiff sought adjournment on the ground that the witness was not present on account of ill health.

4. The learned Trial Court, however, keeping in mind that no documentary corroboration to that effect had been filed and keeping in CM(M) 351/2019 2 view the fact that it was an old case and various opportunities had already been availed by the plaintiff in the past, the opportunity of the plaintiff to lead further evidence was closed and resultantly, the matter was fixed for defendant’s evidence.

5. Said order is under challenge.

6. The present petition is pending for quite some time and it is noticed that when this matter was taken up by the learned Single Judge on 28.02.2019, the operation of the above said order dated 08.11.2017 was also directed to be stayed.

7. In view of the above, everything is standstill and, resultantly, there is no further progress in the aforesaid civil suit in the interregnum.

8. When present petition was pending before this Court, both the sides had though expressed their inclination to settle the matter but, somehow, they could not arrive at any mutually agreeable formula and, therefore, the arguments have been heard today.

9. As already noticed, the above said impugned order was passed in year 2017 and, therefore, there is, virtually, a gap of seven years and keeping in mind the above substantial hiatus and the overall facts of the case, this Court feels that it will be, therefore, appropriate to give one last and final opportunity to the plaintiff to conclude its evidence.

10. When asked, Sh. Modi, learned Senior Counsel for the CM(M) 351/2019 3 petitioner states that the plaintiff would be examining only two witnesses viz. PW-1 Mr. K. Bhaskaran and Ms. Feroza Major. It is also claimed that the affidavit of both the witnesses are already on record and they would ensure that as per the directions to be given in this regard by the learned Trial Court, they appear before the learned Trial Court for the purposes of recording their statements/deposition.

11. Learned Senior Counsel for the respondent submits that as far as PW-1 Mr. K. Bhaskaran is concerned, he was earlier examined and discharged way back on 10.08.2010 and, therefore, without there being any specific permission given by the learned Trial Court, he cannot be permitted to re-enter into witness box.

12. To confront the above submission, learned Senior Counsel for the petitioner submits that when the learned Trial Court had taken up one application moved by the plaintiff seeking permission to lead secondary evidence, such application was allowed by the learned Trial Court on 07.07.2017 and it is only in above said context that Sh. K. Bhaskaran would be re-entering into witness box and not for any other purpose.

13. This Court is very much conscious of the scope and ambit of not only Article 227 of the Constitution of India but also the order which is under challenge herein.

14. The case was fixed for plaintiff’s evidence on 08.11.2017 and since the adjournment had been sought on the ground that the witness was not present on account of some medical exigency, the learned CM(M) 351/2019 4 Trial Court declined to adjourn the matter and closed the right of the plaintiff to lead further evidence. The learned Trial Court also noticed in its order that an application for leading secondary evidence had already been allowed and, thereafter, last and final opportunity was granted to the plaintiff but no witness had been produced despite above.

15. It is reiterated by learned counsel for the petitioner that the plaintiff would not examine any other witness except the above said two witnesses.