Sureshbhai Bhanubhai Thakkar & ANR.  INSC 440 (27 February 2009)
JURISDICTION CIVIL APPEAL NO.1328 OF 2009 (Arising out of S.L.P. (C) No.5313 of
2004) Mahanagarpalika ...Appellant(s) Versus Sureshbhai Bhanubhai Thakkar &
Anr. ...Respondent(s) O R D E R Delay condoned.
The predecessor of
the plaintiffs-respondents filed Special Civil Suit No.204 of 1990 for recovery
of Rs.2,03,300/- with interest @ 18% from the date of notice i.e. 20th August,
1988. He also prayed for grant of a declaration that the
defendant-Mahanagarpalika, Bhavnagar (appellant herein) is bound to allot shop
No.40-I to him at the upset price. After 13 years of the institution of suit,
the evidence of the plaintiffs-respondents was closed on 6.1.2003 and the case
was adjourned to 21.2.2003 for the evidence of the defendant-appellant. As no
witness was produced on that day, the trial Court closed the evidence of the
defendant-appellant. The suit was decreed on 31.3.2003. When the matter was
taken to the High Court in first appeal, the same was dismissed summarily.
We have heard learned
counsel for the parties. In our view, in the facts and circumstances of the
case, the trial Court was not justified in closing the evidence of the
defendant and passing a decree in favour of the plaintiffs-respondents only on
the ground that the High Court had ...2/- -2- required it to expedite disposal
of the suit. The trial Court should have, after taking note of the fact that
the plaintiffs had taken long time to adduce their evidence, given further
opportunity to the defendant-appellant to adduce evidence and then decided the
matter. Its failure to do so has resulted in miscarriage of justice.
While dismissing the
first appeal, the High Court observed that in-spite of sufficient opportunity
having been given, the appellant did not adduce evidence in support of its
case. This must be treated as clearly erroneous because it is an undisputed
fact that only one opportunity was given to defendant-appellant to adduce
For the reasons
stated above, the appeal is allowed, the impugned orders are set aside and the
trial Court is directed to decide the suit afresh in accordance with law after
giving opportunity to defendant-appellant to adduce evidence.