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SCA/13563/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13563 of 2009
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GUJARAT
ELECTRICITY BOARD THROUGH PASCHIM GUJARAT VIJ & 2 - Petitioner(s)
Versus
RAJENDRABHAI
TAPUBHAI KOTADIA - Respondent(s)
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Appearance :
MR
GIRISH D BHATT for
Petitioner(s) : 1 - 3.
MR RR TRIVEDI for Respondent(s) : 1,
MR
BHAVESH P TRIVEDI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 21/01/2011
ORAL
ORDER
1. This
petition has been filed against the order passed by the learned
Principal Sr. Civil Judge, Gondal in application Exhibit-83 filed in
Special Civil Suit No.25/2001 dated 22.06.2009, whereby, the said
application came to be rejected.
2. The
facts in brief are that the respondent herein filed a suit being
Special Civil Suit No.25/2001 against the petitioner-Company praying
for a declaration and permanent injunction that the respondent had
not committed any theft of electricity and that the petitioners were
not entitled to recover any amount from the respondent in pursuance
of the supplementary bill issued by the petitioner. In the said suit,
the petitioners filed its written statement at Exhibit-19.
3. It
is the case of the petitioners that on account of certain unavoidable
circumstances, the petitioners could not cross-examine the respondent
and lead evidence in its defence. Consequently, the trial Court
closed both the rights of the petitioners. Subsequently, the
petitioners preferred application Exhibit-83 for leading evidence in
their defence. However, by impugned order dated 22.06.2009, the said
application came to be rejected. Hence, this petition.
4. Heard
learned counsel for the respective parties and perused the documents
on record. It appears from the record that the case of the
petitioners was not defended properly before the trial Court.
Therefore, the trial Court closed the right of the petitioners to
cross-examine the respondent. In my view, the trial Court ought to
have taken a lenient view since the petitioner is a public authority.
Apart from that the application filed by the petitioners u/s.24 of
the C.P.C. has been rejected by way of order 26.02.2010. Therefore,
in the fitness of things, it would be appropriate that the trial
Court concerned decides the suit after giving proper opportunity to
the petitioners to cross-examine the respondent.
5. In
view of the above, the petition is partly allowed. The impugned order
passed by the trial Court is quashed and set aside. The trial Court
concerned is directed to allow the petitioners to lead evidence in
their evidence subject to the condition that before allowing the
same, the petitioners deposit an amount of Rs.10,000/- [Rupees ten
thousand only] by way of costs before the trial Court concerned,
within a period of four weeks from today. On such deposit being made,
the trial Court concerned shall proceed with the hearing of the suit.
Respondent, original plaintiff, shall be permitted to withdraw the
said amount after necessary verification.
With
the above directions, the petition stands disposed of. R & P, if
lying with this Court, be sent to the trial Court concerned
forthwith.
[K.
S. JHAVERI, J.]
Pravin/*
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