M/S.Foodworld Super Markets Ltd. & Anr vs H.Sujan Singh & Ors

M/s. Foodworld Super Markets Ltd. & Anr. ..........Appellants

Versus

Shri H. Sujan Singh & Ors. ........Respondents

ORDER

Leave granted.

2) Since the issue involved in this appeal lie in a narrow compass, by

consent of both the learned counsel, the matter is taken up for

final hearing.

3) The appellant is the tenant of a business premises measuring 4000

Sq. fts. situated at No. 1133, HAL 2nd Stage, Corporation Ward

No. 74, Bangalore. The appellant is the defendant before the trial

court.

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4) The respondents herein are the landlords. They have filed a Civil

Suit O.S. No. 1894 of 2007 for ejectment of the defendants from

the suit schedule premises.

5) After exchange of pleadings, the Suit was posted for evidence of

the plaintiffs. The plaintiff (P.W.1) has filed his affidavit by way

of his evidence. On the request made by learned counsel for the

defendant, the matter had been adjourned twice for cross

examination of plaintiff (P.W.1) and finally, it was posted on

28.2.2008. Since the learned counsel for the defendant was not

present before the court, when the matter was called out, the

learned trial Judge has closed the evidence of the plaintiff and has

posted the matter for the evidence of the defendants, if any.

6) Subsequently, the defendants have filed application (I.A.No.2) for

recalling the order dated 28.2.2008 and permit them to cross

examine the plaintiff (P.W.1). In the affidavit filed along with the

application, they have assigned the reasons for not being present

before the court when the case was called out twice.

7) The learned trial Judge not impressed by the explanation offered

by the defendants, has rejected the application (I.A. No. 2). Being

aggrieved by the said order, the defendants had carried the matter

2 by filing a Writ Petition under Article 227 of the Constitution of

India before the High Court to issue a writ in the nature of

certiorari and direct the trial court to afford one more opportunity

to the defendants to cross examine plaintiff (P.W.1).

8) The writ court has dismissed the writ petition. Hence, this appeal.

9) We have heard learned counsel for the parties to the lis. We have

also carefully perused the affidavit filed with the application

(I.A.No. 2) to recall the order dated 28.2.2008, discharging P.W.1

from cross examination. In our considered view, the explanation

offered by the defendants appears to be not only satisfactory and

also bonafide. This aspect of the matter is not properly appreciated

both by the trial court and the High Court. In our view, the

foreclosure of the defendants right to cross examine the plaintiff

(P.W.1) has resulted in grave prejudice to the right of defence of

the defendant/appellant herein. Therefore, we cannot sustain the

impugned orders.

10) In view of the above discussion, we allow this appeal and set aside

the impugned orders. Now a direction is issued to the trial court to

recall the plaintiff's witness and permit the defendants/appellants

to cross examine plaintiff's witness (P.W.1) in O.S. No. 1894 of

3 2007. Since the matter is pending from last two years, we direct

the trial court to dispose of the suit as expeditiously as possible at

any rate within an outer limit of six months from the date of

receipt of this court's order. No order as to costs.

.......................................J. [ TARUN CHATTERJEE ]

.......................................J. [ H.L. DATTU ] New Delhi, April 13, 2009.

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