SBCWP No7118/2008 Chhitar Kumawat & Anr. Vs. Bhura Lal & Ors. 1 SBCWP No7118/2008 Chhitar Kumawat & Anr. Vs. Bhura Lal & Ors. DATE OF ORDER : - 1.4.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. Sanjay Nahar, for the petitioner. <><><> Notices were issued to the respondents and nobody appeared inspite of service, therefore, heard learned counsel for the petitioner. The plaintiff's suit was dismissed by the trial court on 2nd April, 2008 for non-prosecution. The plaintiff submitted application for restoration of the suit on the next date i.e., 3rd April, 2008 with the plea that because of break down of bus, the plaintiff could not reach in court and learned counsel for the plaintiff-petitioner were also busy in another court, therefore, the trial court has dismissed the suit of the plaintiff for non-prosecution on 2nd April, 2008. After hearing both the parties on this application, the trial court vide order dated 18th July, 2008 restored the suit of the plaintiff on payment of cost of Rs.500/-, but very strangely by the same order dated 18th July, 2008, closed SBCWP No7118/2008 Chhitar Kumawat & Anr. Vs. Bhura Lal & Ors. 2 the evidence of the plaintiff. The trial court's approach was absolutely misconceived and misplaced when the trial court observed that there is no explanation why the counsel did not appear when there were three counsels of the plaintiff and rejected the plaintiff's contention that he could not attend the court due to break down of the vehicle – bus. The trial court proceeded to reject the contention of the plaintiff only on assumption rather the fact remains that the trial court itself has found that suit is required to be restored. When the trial court has restored the suit of the plaintiff after taking into account all the facts then it is clear that the trial court has accepted the explanation of the plaintiff for absence on the relevant date, therefore, the trial court could not have closed the evidence that too while deciding the application under Order 9 Rule 4 CPC. It will be worthwhile to mention here that the proceedings under Order 9 Rule 4 CPC are misc. proceedings and the trial of the suit proceed in the suit wherein the court can pass the order. Be it as it may be, there was no reason for the trial court to close the evidence of the plaintiff at this stage only on the ground SBCWP No7118/2008 Chhitar Kumawat & Anr. Vs. Bhura Lal & Ors. 3 that on earlier occasion, the plaintiff has already been given five opportunities. As already observed when the trial court accepted the explanation of the plaintiff substantially while restoring the suit, the trial court has not reason to close the evidence of the plaintiff. Hence, the writ petition of the petitioner is allowed. The trial court's order closing the evidence of the plaintiff is set aside. (PRAKASH TATIA), J. c.p.goyal/-