Judgment:
APDT No.15 of 2015 GA No.1569 of 2015 CS No.126 of 2004 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE CESC LIMITED Versus THREE CHEERS ENTERTAINMENTS PVT.LTD.BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR The Hon'ble JUSTICE JOYMALYA BAGCHI Date : 29th June, 2015.
For Appellant : Mr.Mr.Mr.Mr.Mr.Mr.Jayanta Kr.
Mitra, Sr.Advocate Joydeep Kar, Sr.Advocate Dhruba Ghosh, Advocate, Debraj Bhattacharya, Advocate Rishav Dutt, Advocate and Amarnath Ghosh, Advocate For Respondent Nos.1&2: Mr.Sandip Bhattacharyya, Advocate Mr.Rajesh Sen, Advocate Mr.Rajmohan Chattaraj, Advocate, Mr.Suman Basu, Advocate and Ms.Debolina Chatterjee, Advocate For Respondent No.3 : Mr.Sabyasachi Roychowdhury, Advocate Mr.Mainak Ganguly, Advocate The Court : Though a separate application is not filed for condonation of delay of 27 days, in the appeal itself, such prayer was sought.
We have gone through the contents of the appeal.
We are of the opinion that delay deserves to be condoned and, accordingly, is condoned.
Then coming to the challenge in the appeal, it is with regard to the impugned order dated 11.3.2015.
It is just and proper to mention certain facts pertaining to this case with reference to earlier proceedings.
The suit is filed by the appellant herein claiming damages for defamation against the respondents.
On an earlier occasion, the matter went up to the Hon’ble Apex Court wherein there was a direction to proceed with the matter after depositing certain amount of costs to the Legal Services Authority by the appellant herein which, according to the appellant, has been paid.
It is also pertinent to mention that earlier the respondent/defendant did not file written statement and the evidence was taken up ex parte, which came to be set aside permitting the written statement of the defendant to be brought on record so as to permit the parties to proceed with the matter on merits.
This is how the matter is being contested between the parties right from 2004 onwards.
The matter is still at the stage of recording the evidence of the plaintiff’s witness when the impugned order came to be passed.
On 9.3.2015 the matter came up for recording the evidence of the plaintiff on which date as per the material placed on record, we note, the plaintiffs brought to the notice of the Hon’ble Court that the plaintiff and the witness would not be available from 10.3.2015 onwards on account of annual celebrations and also other official commitments in respect of Carnival to be held at Kolkata and also at Sikkim.
Learned Judge, apparently observed that if the matter cannot be taken up on 9.3.2015, it shall be adjourned till December, 2015 in the combined list.
At that point of time, the plaintiff’s evidence which was commenced on 2.3.15 i.e.examination-in-chief was completed and a portion of cross-examination was also brought on record.
The matter appeared on 10.3.2015.
As the Court had to deal with the petitions filed under Article 226 of the Constitution on 10.3.2015, recording of evidence in original suit was not taken up.
Therefore, though the witness was present on 10.3.2015, crossexamination could not be proceeded further.
On 11.3.2015 apparently the plaintiff’s witness, P.W.1 was not present and the Learned Judge proceeded to pass the following order :“The Court : The witness of the plaintiff was being cross-examined.
Prayer for adjournment of the hearing of the suit was made on behalf of the plaintiff on two previous occasions on the same ground that the witness under oath would leave station for official purpose.
Such prayers were refused.
Today the plaintiff is not in a position to produce the circumstances, the evidence of the plaintiff so far as the fiRs.witness cannot be relied upon as such witness has not presented himself for further cross-examination.
The plaintiff is called upon to produce any other witness.
It is submitted on behalf of the plaintiff that they have no other witness to produce.
In such circumstances the evidence on the part of the plaintiff is closed.
Since the plaintiff has not proved its case, C.S.126 of 2004 is dismissed.
No order as to costs.
Interim ordeRs.if any, are vacated.” Subsequently, recalling application came to be filed and the same was also dismissed by referring to order dated 11.3.2015.
Prior to seeking adjournment on 11.3.2015, a letter was addressed to the Advocate for the respondent/defendant indicating non-availability of the witness between 10.3.2015 to 28.3.2015.
From the material placed on record, there were two events in which, according to the appellant, P.W.1 had to take part - one at Kolkata, which was scheduled to be held between 11.3.2015 to 13.3.2015 and another at Sikkim scheduled on 17.3.2015 onwards.
Contention of the respondent/defendant seems to be that if the tickets were booked for travelling to Sikkim happens to be on 16th, there was no justification not to proceed with the cross-examination on 11.3.2015.
Learned Counsel for respondent-defendant places reliance on (1976) 4 Supreme Court Cases 66 in the case of Y.B.Patil And ORS.Vs.Y.L.
Patil to contend that principles of res judicata can be invoked not only in separate subsequent proceeding but, they also get attracted in subsequent stage of the same proceeding.
Therefore, according to him, once an order made in the couRs.of proceeding becomes final, it would be binding at the subsequent stage of that proceeding.
He also relies upon (2010) 8 Supreme Court Cases 685 in the case of Balwaznt Singh (dead) versus Jagdish Singh & ORS.to contend that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective.
Therefore, according to him, a provision of a statute including every word have to be given full effect keeping the legislative intent in mind in order to ensure that the projected object is achieved.
According to learned Counsel for the respondent, expression ‘sufficient cause’ implies legal and adequate reason though liberal construction of the expression is possible.
According to him, in the present case, once the suit came to be dismissed and now the cause shown as sufficient cause cannot be expanded to a stage where it would not be legal and adequate.
It is brought to our notice that not only in the letter seeking adjournment addressed to the respondent’s counsel but also in the application seeking recalling of the order dated 11.3.2015, there is reference to not only Sikkim event but also other annual celebrations of the department in which the witness had to take part.
Now they have explained that in the quiz to be conducted at Kolkata between 11.3.2015 to 13.3.2015 presence of this P.W.1 was necessary.
Therefore, he was not available on 11.3.2015.
Subsequent to 13th March, he had to travel to Sikkim to attend official commitment on 17.3.2015 at Sikkim.
However, on 11.3.2015, the Learned Judge referring to the earlier occasions dismissed the suit on the ground that plaintiff did not proceed with the matter.
It was also submitted on behalf of the plaintiff that they had no other evidence so far as the plaintiff is concerned.
The question is whether one more opportunity ought to have been given to the plaintiff to proceed with the matter in the light of the above materials.
Though there was no clear details regarding 11th to 13th event and 17th March event at Sikkim, but there is definitely mentioning of the annual event and also official commitment of the witness for seeking adjournment for further evidence of the witness.
This is not at all a false reason and, on the other hand, the materials placed on record clearly indicate, in fact, there were such events, one at Kolkata and another at Sikkim.
As a matter of fact, when the Judge was reluctant to adjourn the matter on 9.3.2015, plaintiff did proceed with the matter completing examination-in-chief.
Probably he commenced evidence thinking that before 11th March he would be able to complete his evidence and go, more so since the evidence commenced on 2.3.2015 itself.
But the matter was not taken up on 10.3.2015.
The witness definitely knew his difficulty on 11.3.2015.
Therefore, on 9th itself, plaintiff must have sought for time because of the earlier official commitments of him.
Since the Judge was reluctant to adjourn the matter, they completed the examination-in-chief.
The matter did not reach on 10th but on 11th March, 2015 the suit came to be dismissed.
We are of the opinion, since the suit is contested between the parties seriously, both the parties should have proper and reasonable opportunity to bring forth their respective stands before the Court so as to get the matter heard on merits.
Plaintiff’s examination-in-chief was brought on record and the matter came to be closed.
On earlier occasion written statement was not filed but an opportunity was given to the defendant to bring on record the defence of the defendant.
In the similar manner there has to be one more opportunity to the plaintiff to bring on record the evidence which they have pleaded in the plaint.
The stand of the defendant that it has acquired right arising out of the order is not palatable in the sense it is not an order on merit after contest.
No prejudice would be caused to the defendant/respondent if the evidence of the plaintiff is to be continued from where it was closed or rejected as the defendants would have proper opportunity to challenge the stand of the plaintiff by way of crossexamination.
No doubt, some inconvenience is caused, but ultimately the matter would be decided on merits, especially having regard to the sensitivity nature of the lis pending between the parties.
Accordingly, the appeal is allowed on payment of cost of Rs.10,000/-, to be paid to the defendant nos.1 and 2.
Evidence must be completed without seeking unnecessary adjournments.
Both the parties must co-operate and complete the evidence so as to dispose of the suit on merits in terms of the Apex Court’s direction.
P.W.1 shall appear before the concerned Court having the roaster and present himself to be crossexamined as P.W.1 on 30.7.15.
Both the appeal and the application stand disposed of accordingly.
Prayer for stay of operation of this order for a month is considered and rejected.
(MANJULA CHELLUR, C.J.) (JOYMALYA BAGCHI, J.) Rsg./SN.
AR(CR)