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                                                NON-REPORTABLE

                 IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NO.2380 OF 2009                   (Arising out of SLP(C) No. 22584 of 2008)

M/s. Foodworld Super Markets Ltd. & Anr.           ..........Appellants

                                  Versus

Shri H. Sujan Singh & Ors.                          ........Respondents

                                 ORDER

       Leave granted.

  2)    Since the issue involved in this appeal lie in a narrow compass, by

        consent of both the learned counsel, the matter is taken up for

        final hearing.

  3)    The appellant is the tenant of a business premises measuring 4000

        Sq. fts. situated at No. 1133, HAL 2nd Stage, Corporation Ward

        No. 74, Bangalore. The appellant is the defendant before the trial

        court.

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4)   The respondents herein are the landlords. They have filed a Civil

    Suit O.S. No. 1894 of 2007 for ejectment of the defendants from

    the suit schedule premises.

5)   After exchange of pleadings, the Suit was posted for evidence of

    the plaintiffs. The plaintiff (P.W.1) has filed his affidavit by way

    of his evidence. On the request made by learned counsel for the

    defendant, the matter had been adjourned twice for cross

    examination of plaintiff (P.W.1) and finally, it was posted on

    28.2.2008. Since the learned counsel for the defendant was not

    present before the court, when the matter was called out, the

    learned trial Judge has closed the evidence of the plaintiff and has

    posted the matter for the evidence of the defendants, if any.

6)   Subsequently, the defendants have filed application (I.A.No.2) for

    recalling the order dated 28.2.2008 and permit them to cross

    examine the plaintiff (P.W.1). In the affidavit filed along with the

    application, they have assigned the reasons for not being present

    before the court when the case was called out twice.

7)   The learned trial Judge not impressed by the explanation offered

    by the defendants, has rejected the application (I.A. No. 2). Being

    aggrieved by the said order, the defendants had carried the matter

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     by filing a Writ Petition under Article 227 of the Constitution of

     India before the High Court to issue a writ in the nature of

     certiorari and direct the trial court to afford one more opportunity

     to the defendants to cross examine plaintiff (P.W.1).

8)    The writ court has dismissed the writ petition. Hence, this appeal.

9)    We have heard learned counsel for the parties to the lis. We have

     also carefully perused the affidavit filed with the application

     (I.A.No. 2) to recall the order dated 28.2.2008, discharging P.W.1

     from cross examination. In our considered view, the explanation

     offered by the defendants appears to be not only satisfactory and

     also bonafide. This aspect of the matter is not properly appreciated

     both by the trial court and the High Court. In our view, the

     foreclosure of the defendants right to cross examine the plaintiff

     (P.W.1) has resulted in grave prejudice to the right of defence of

     the defendant/appellant herein. Therefore, we cannot sustain the

     impugned orders.

10)   In view of the above discussion, we allow this appeal and set aside

     the impugned orders. Now a direction is issued to the trial court to

     recall the plaintiff’s witness and permit the defendants/appellants

     to cross examine plaintiff’s witness (P.W.1) in O.S. No. 1894 of

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     2007. Since the matter is pending from last two years, we direct

     the trial court to dispose of the suit as expeditiously as possible at

     any rate within an outer limit of six months from the date of

     receipt of this court’s order. No order as to costs.

                                          .......................................J.                                            [ TARUN CHATTERJEE ]

                                          .......................................J.                                            [ H.L. DATTU ] New Delhi, April 13, 2009.

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