The High Court allowed a civil revision petition challenging a docket order dismissing an application for recall of an advocate-defendant. Finding a communication gap likely, the Court imposed heavy costs to meet the ends of justice.
Impugned order set aside; petitioner directed to pay costs of Rs. 20,000 to other side.
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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No. 3307 of 2013
Order:
This revision is filed challenging the docket orders dated 04.07.2013 passed in O.S. No.318 of 2008 by the I Additional Senior Civil Judge, Nellore.
The petitioner herein is the first defendant and the first respondent herein is the plaintiff in O.S. No.318 of 2008. The evidence of plaintiff was closed and the said suit was posted for evidence of the defendants. The petitioner herein was examined as DW.1 and when the case was posted for his cross-examination, he did not appear before the Court, therefore his evidence was closed. He filed an application to recall him for cross-examination and the said petition was dismissed. Then he approached this Court and filed CRP Nos.391 and 401 of 2013 and this Court, by a common order dated 25.04.2013, allowed the said CRPs with following conditions.
“1. Petitioner shall either deposit or directly pay to the learned counsel for the respondent herein costs of Rs.5,000/- (Rupees Five Thousand only) on or before 30.04.2013.
2. On receipt of this order, the Court below shall fix a suitable date for trial in the week commencing from 17.06.2013 and on that date, the petitioner shall appear before the Court below and cooperate with the disposal of the suit without seeking any adjournment.“
Then the case was called on 27.06.2013. On that day, notice was issued to the parties informing the conditions imposed by this Court and the case was adjourned to 04.07.2013. It appears that the petitioner, in pursuance of condition No.1, paid Rs.5,000/- to other side, but he was called absent on 04.07.2013. The lower Court,
holding that the petitioner has violated the orders of this Court, dismissed the IA filed by the petitioner. Aggrieved by the said order, this revision has been filed.
The only contention of Sri A. Chandraiah Naidu, learned counsel for the petitioner, is that the notice dated 27.06.2013 was served on the petitioner on 04.07.2013 and on that day the petitioner had been to Tirupathi and he had no knowledge about the posting of the case on 04.07.2013. A memo was filed before the lower Court stating that the petitioner was held up at Tirupathi and there is no communication of date of adjournment of the suit.
The petitioner is a practicing advocate. In all probabilities he knows all the Court proceedings. He is a party to the suit. No affidavit has been filed to say that he was not present before the Court on 27.06.2013. The lower Court, holding that the petitioner has knowledge about the order of this Court, but failed to appear before the Court and thereby not complied with the orders of this Court, posted the case for arguments.
Having regard to the facts and circumstances of the case and the contention of the petitioner that he had been to Tirupathi and there was some communication gap, it appears that the ends of justice would be met if the CRP is allowed by imposing heavy costs.
Accordingly, the CRP is allowed and the impugned order is set aside on condition of the petitioner paying costs of Rs.20,000/(Rupees Twenty Thousand only) to other side. The lower Court shall fix a date for cross-examination of the first defendant (DW.1) within a period of eight (8) days from the date of receipt of a copy of this order and the first defendant shall appear before the Court on the date fixed by the lower Court and pay costs of Rs.20,000/- to the other side and on complying with the said condition, the lower Court shall recall him
for cross-examination.
As a sequel, the miscellaneous petitions, if any, pending in this
CRP shall stand closed.
___________________ B. CHANDRA KUMAR, J.
Date: 27.11.2013 Nsr
1 issue framed by the court
Whether the revision petition filed by the absent petitioner should be allowed despite violation of the higher court's order.
First Defendant
Plaintiff
B. CHADRA KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
