Dismissed

The Mathadi Hamal Kamgar Sahakari Society Ltd, through Chairman v. the Sr. Regional Manager (Mah), Food Corporation of India and Ors.

Bombay HC14 Mar 2013WP/2461/2013

Case brief

AI extract

What is this about?

High Court dismissed a writ petition against the Trial Court's rejection of an application for recall of an order granting plaintiffs an opportunity to adduce evidence. The Court held it could not interfere with the Trial Court's discretion but directed that the defendant's claim regarding interest delay be considered.

What did the court decide?

Writ Petition dismissed without interfering with the impugned order, subject to observations regarding interest claims.

The Mathadi Hamal Kamgar Sahakari Society Ltd… — Civil Procedure and Limitation | Bombay HC (2013)

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13.wp.2461.13.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2461 OF 2013

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The Mathadi Hamal Kamgar Sahakari Society Ltd.

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..Petitioner

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-Versus-

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The Sr.Regional Manager (Mah.) Food Corporation of India & Anr.

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..Respondents

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Mr.Ashutosh M. Kulkarni, Advocate for the Petitioner.

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None for the Respondents.

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CORAM : R.M. SAVANT, J. DATE : 14^TH MARCH 2013

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P.C.

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1 The writ jurisdiction of this Court is invoked against the order dated

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24.01.2013 passed by the learned Civil Judge, Senior Division, Ratnagiri

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by which order the application Exhibit 87 filed for recall of the order dated 22.11.2011 passed on Exhibit 86 came to be rejected.

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2 The Petitioner herein is the original Defendant in the suit in question being Special Civil Suit No.92/2001 which is filed by the Respondent No.1-Food Corporation of India for recovery of an amount of Rs.11,26,868/-. In the said suit, a ‘No Evidence' order came to be

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passed against the Plaintiffs on 16.12.2010 as the Plaintiffs inspite of

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S.K.Talekar

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opportunity did not adduce evidence. For setting aside of the said order, the Plaintiffs filed an application being Exhibit 86. It was the case of the Plaintiffs in the said application that it was on account of the personal difficulties of the Officer concerned, one Mr.Kotwal, that instructions could not be given to the Advocate to adduce evidence. Thereafter on account of transfers also that the instructions could not be given which ultimately resulted in the ‘No Evidence’ order being passed against the Plaintiffs. The Plaintiffs therefore prayed that the said ‘No Evidence’ order be set aside and the Plaintiffs be allowed to lead evidence.

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3 The Trial Court considered the said application Exhibit 86 on the same day on which it was filed i.e. 22.11.2011 and after observing that in order to prove the claim the Plaintiffs should be allowed to adduce evidence held that it would be just and proper to grant an opportunity to the Plaintiffs to adduce evidence and prove its case. The Trial Court, as can be seen, from the said order dated 22.11.2011, did not approve of the conduct of the Plaintiffs but deemed it appropriate to grant an opportunity to it. The Trial Court, therefore, imposed costs of Rs.3,000/- on the Plaintiffs. It seems that on the same day i.e. 22.11.2011, the Defendant i.e. the Petitioner herein, filed application Exhibit 87 for recall of the order passed on Exhibit 86 which was passed at around 4.20 p.m. on 22.11.2011. However, it seems that the Trial Court did not entertain the

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said application on the said day and has proceeded to decide some other applications included the application Exhibit 91 for leading secondary evidence filed by the Plaintiffs. This resulted in the Defendant i.e. the Petitioner approaching this Court by way of Writ Petition No.6722/2012. A learned Single Judge of this Court did not entertain the challenge in so far as the order passed on Exhibit 91 is concerned, but directed the Trial Court to decide Exhibit 87 which was filed by the Defendant for recall of the order dated 22.11.2011. It is in terms of the said directions that the Trial Court has decided the application Exhibit 87.

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4 In so far as the application Exhibit 87 is concerned, the relief sought was in two parts one was for recall of the order dated 22.11.2011 passed on Exhibit 86 and the other part was that the Plaintiffs were not entitled to interest.

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5 In so far as the recall of the order passed on Exhibit 86 is concerned, the Trial Court held that the reasons mentioned for allowing the application Exhibit 86 are already appearing in the order dated 22.11.2011 passed on Exhibit 86 and therefore, for the said reasons, the application Exhibit 87 could not be allowed. However, in so far as the aspect of interest is concerned, the Trial Court was of the view that the said aspect would be contingent upon the decision in the suit and it was

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S.K.Talekar

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not necessary to consider the said aspect at this stage.

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6 In my view, in so far as the order passed on application Exhibit 87 is concerned, since the Trial Court has exercised discretion so as to afford an opportunity to the Plaintiffs to adduce evidence in support of its case, this Court in its jurisdiction under Article 227 of the Constitution of India, does not deem it fit to interdict with the said discretion exercised by the Trial Court. However, in so far as the aspect of interest is concerned, though undoubtedly the Trial Court as observed by it would consider it at the time of the decision in the suit, the Defendant would be entitled to urge before the Trial Court that the ‘No Evidence’ order was passed against the Plaintiffs on 16.12.2010 and which was set aside on 22.11.2011 which impinges upon the right of the Plaintiffs to claim interest. If such a contention is raised, the Trial Court would consider the same on its own merits and in accordance with law.

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Hence, without interfering with the impugned order but subject to the observations as aforestated, the Writ Petition is dismissed.

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(R.M. SAVANT, J.)

The Mathadi Hamal Kamgar Sahakari Society Ltd, through Chairman v. the Sr. Regional Manager (Mah), Food Corporation of India and Ors.

Case brief

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The Mathadi Hamal Kamgar Sahakari Society Ltd, through Chairman v. the Sr. Regional Manager (Mah), Food Corporation of India and Ors.

Case brief

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