1. The appeal has been filed lay the appellant against the judgment and decree dated 29-12-2004 passed by the Additional District Judge, Fast Track Court, Solan, vide which the suit filed by the plaintiff-respondent No. 1 was decreed.

2. It is not necessary to give the facts of the case in detail as in my opinion, the judgment and decree passed by the trial Court are liable to be set aside on the short ground that the defendant-appellant was not given sufficient opportunity to produce evidence in its defence.

3. The plaintiff-respondent had filed the suit for infringement of copyright, passing off and rendition of accounts on 19-10-2001. The suit was contested by the defendants by filing written statement dated 10-1-2002. Replication dated 9-4-2002 was filed on behalf of the plaintiff. On the same day i.e 9-4-2002 issues were framed in this case. Thereafter, the case was fixed for plaintiff's evidence. The plaintiff produced various witnesses by way of evidence taking various opportunities and also produced additional evidence. Ultimately on 26-6-2004 the plaintiff closed its evidence in the affirmative and thereafter, the case was fixed for defendant's evidence, for 19-7-2004, on which date no D.W was present and the case was adjourned to 19-8-2004. On 19-8-2004, again no witness was present and the case was adjourned to 9-9-2004, on which date again no witness was present and the case was adjourned to 28-9-2004, subject to payment of costs. On 28-9-2004, one D.W Rajeev Jindal was present and was ready with his affidavit and some documents which were intended to be filed in evidence and the copies of the affidavit and documents were supplied to the plaintiff. However, the trial Court did not record the evidence on 28-9-2004 on the ground that no time was left and accordingly, the case was adjourned to 14-10-2004 for defendants' evidence. On 14-10-2004, no witness on behalf of the defendants was present. Rajeev Jindal, who was present on the previous date of hearing, also could not come present as he was stated to have gone out of station and as such, adjournment was prayed. However, the learned Additional District Judge (Trial Court) closed the evidence of the defendants by Court order on 14-10-2004 itself after observing that the defendants had already availed four opportunities i.e 19-7-2004, 19-8-2004 and 28-9-2004 and that this i.e 14-10-2004 was the 5th opportunity. Thereafter, after hearing both the sides, the learned Additional District Judge decreed the suit of the plaintiff, vide judgment and decree dated 29-12-2004. Aggrieved against the same, defendant No. 1, filed the present appeal in this Court.

4. When the appeal came up for hearing before me on 25-8-2005, part arguments were heard. During the course of arguments, the learned counsel for the defendant-appellant had submitted before me that the learned trial Court had closed the evidence of the defendant-appellant in haste. It was also submitted that even though one of the witnesses of the defendants was present in the Court on 28-9-2004 along with the affidavit and some documents, yet his statement was not recorded and the case was adjourned to 14-10-2004 as no time was left and that on 14-10-2004 said witness could not come present and the trial Court closed the evidence of the defendant-appellant taking 28-9-2004 also as one of the opportunities given to the defendants for producing their evidence. At the request of the counsel for the plaintiff-respondent, the case was adjourned to 7-9-2005 i.e today for remaining arguments.

5. After hearing the learned counsel for the parties and perusing the record, in my opinion, the present appeal has to be allowed, the judgment and decree of the trial Court have to be set aside and the case has to be remanded to the trial Court for decision afresh after allowing opportunity to the defendants to produce evidence in support of their case.

6. As referred to above, the issues in this case were framed on 9-4-2002. It was only on 26-6-2004 that the plaintiff had closed its evidence in the affirmative. Thereafter, the case was fixed for defendants evidence. Three short opportunities of one month or less than one month were given to the defendants to produce their evidence and on the 4th opportunity i.e on 28-9-2004 when one of the witnesses of the defendants was present in the Court along with the affidavit and some documents, his evidence could not be recorded by the Court for want of time and the case was adjourned to 14-10-2004 for defendants' evidence. As referred to above, on 14-10-2004, no witness of the defendants could come present and a short date was requested. However, instead of granting opportunity to the defendants to produce their evidence, the learned trial Court proceeded to close the evidence of the defendants by Court order by observing that it was the 5th opportunity and while saying so the learned Additional District Judge also considered 28-9-2004 as one of the opportunities to produce evidence, forgetting that on 28-9-2004 one witness of the defendants was present along with affidavit and some documents for producing the same by way of evidence, but his evidence was not recorded by the Court for want of time.

7. From a perusal of the above, in my opinion, it will be clear that the learned trial Court acted in haste in closing the evidence of the defendants by Court order on 14-10-2004. As referred to above, the plaintiff took more than two years in producing evidence and the evidence was closed on 26-6-2004. Thereafter, the case was fixed for the defendants' evidence and the learned trial Court proceeded to give short adjournments of less than one month each (except once when one month's date was given). In spite of this, one of the witnesses of the defendants was present in the Court on 28-9-2004 to give evidence along with his affidavit and certain documents, but his statement could not be recorded for want of time and the case was adjourned to 14-10-2004, on which date no witness was present and the evidence of the defendants was closed by Court order.

8. Under O. 17, R. 1, C.P.C (as amended), it has been provided that the Court may if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing, provided that no such adjournment shall be granted more than three times to a party during hearing of the suit. It is further provided therein that in every such case, the Court shall fix a day for the further hearing of the suit and shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit. It is also provided therein that no adjournment shall be granted at the request of a party except where the circumstances are beyond the control of that party. The provisions of O. 17, R. 1, C.P.C came up for consideration before a three-Judge Bench of the Hon'ble Supreme Court, in the case Salem Advocate Bar Association, T.N v. Union Of India, 2005 (6) JT (SC) 486 : (AIR 2005 SC 3353). While considering the question regarding adjournments, covered by the provisions of O. 17, R. 1, C.P.C, it was observed by the Hon'ble Supreme Court that while examining the scope of the proviso to O. 17, R. 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to O. 17, R. 2 incorporating Cls. (a) to (e) had been retained, which provided that no adjournment shall be granted at the request of a party except where the circumstances are beyond the control of that party. It was held that proviso to O. 17, R. 1 and O. 17, R. 2 have to be read together and if so read, O. 17 does not forbid grant of adjournment where the circumstances are beyond the control of the party. It was further held that in such a case there is no restriction on number of adjournments to be granted and it could not be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted, since there may be cases beyond the control of a party despite the party having obtained three adjournments. It was further held that it could not be said that even though the circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to O. 17, R. 1, C.P.C It was further held that in some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted and ultimately, it will depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. It was further held that the provision for costs and higher costs had been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. It was further held that the said amendment would not take away the discretion of the Court in extreme hard cases and the limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. It was further held that even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost, may grant adjournment beyond three, having regard to the injustice that may result on refusal thereof with reference to peculiar facts of a case. It was also held by the Hon'ble Supreme Court that grant of any adjournment is not a right of a party and the grant of adjournment by a Court has to be on a party showing special and extraordinary circumstances and it cannot be in routine. It was further held that while considering prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.

9. Keeping in view the law laid down by the Hon'ble Supreme Court in the above mentioned authority, in my opinion, the learned trial Court had erred in law in closing the evidence of the defendants by Court order vide order dated 14-10-2004, especially when on the previous date i.e on 28-9-2004 one of the witnesses of the defendants was present and was ready with his affidavit and some documents which were intended to be filed in evidence, but his statement could not be recorded as no time was left. Under these circumstances, if for any reason the said witness of the defendants could not come present on 14-10-2004, as he was stated to have gone out of station, the learned trial Court ought to have granted opportunity to the defendants to produce their evidence, especially when a request for adjournment was made on the ground that the witness had gone out of station. However, as referred to above, instead of granting adjournment, the learned trial Court proceeded to close the evidence of the defendants by Court order. In my opinion, closing of the defendants' evidence by Court order on the facts and circumstances of the present case has certainly resulted in the miscarriage of justice and it appears that the learned trial Court had acted in haste in closing the evidence of the defendants by Court order, keeping in view, the facts and circumstances of the present case. If several opportunities could be granted to the plaintiff even after the amendment of the Code of Civil Procedure in the year 2002 and the plaintiff was also allowed to produce additional evidence, in my opinion, the learned trial Court ought to have considered the facts and circumstances of the present case and ought to have granted opportunity to the defendants to produce their evidence, keeping in view the facts and circumstances of the present case. In this view of the matter, in my opinion, it is a fit case where the order dated 14-10-2004 passed by the trial Court be set aside and the defendants be given opportunity to produce evidence in support of their case, I am further of the opinion that once order dated 14-10-2004 passed by the trial Court, closing the evidence of the defendants by Court order, is set aside and opportunity is given to the defendants to produce their evidence, the judgment and decree passed by the trial Court have also to be set aside since the trial Court will have to decide the suit afresh on the basis of the evidence, that may be produced on the record, after the remand.

10. For the reasons above, the present appeal is allowed, the judgment and decree dated 29-12-2004 passed by the trial Court are set aside and the case is remanded to the trial Court for decision afresh in accordance with law after giving opportunity to the defendants to produce their evidence.

11. Parties through their counsel are directed to appear before the trial Court on 30th September, 2005 for further proceedings in accordance with law. On that day, the learned trial Court shall fix a date for defendants' evidence. It is made clear that on the said date, so fixed by the trial Court, the defendants shall produce their entire evidence. However, in case defendants are unable to produce their entire evidence on the date so fixed by the trial Court and ask for any further opportunity on the ground that they could not produce their entire evidence because of the circumstances beyond their control, the learned trial Court would be at liberty to grant one opportunity to the defendants to produce their evidence subject to payment of “higher costs,” keeping in view the provisions of O. 17, Rr. 1 and 2, C.P.C and the law laid down by the Hon'ble Supreme Court in Salem Advocate Bar Association case (AIR 2005 SC 3353) (supra).

12. Since the trial Court record was summoned in this case, the same shall be sent back to the trial Court forthwith along with a copy of this order, for further necessary action and strict compliance.

C.M.P No. 210 of 2005:

13. In view of the orders passed in the main appeal, this application also stands disposed of.

Appeal allowed.