1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::: O R D E R LRs of Sawant Singh vs Chandra Prabhu Bhagwan Digambar Jain Mandir & Anr. S.B.Civil Second Appeal No. 199/2007 AGAINST THE JUDGMENT AND DECREE DATED 2.2.2006 PASSED BY SHRI HIMANSHU RAI NAGORI, RHJS, ADDL. DISTICT JUDGE, PARBATSAR, NAGAUR IN CIVIL APPEAL (JUDGMENT AND DECREE) NO.26/2004 DISMISSING THE APPELLANT'S FIRST APPEAL AND ALSO AGAISNT THE JUDGMENT AND DECREE DATED 20.4.2004 PASSSED BY CIVIL JUDGE (JR. DIV.) CUM JUDICIAL MAGISTRATE, FIRST CLASS, NAVA IN CIVIL ORIGINAL CASE NO.29/98. Date of order : 2.1.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.IR Choudhary ] Mr.RK Soni ], for the appellant. <><><> Heard learned counsel for the appellant. In this second appeal, the appellant is seeking indulgence of the court on the ground that appellant's-defendant's evidence was closed by the trial court on second occasion only. After decree when appellant raised grievance against the closure 2 of evidence of the appellant, the first appellate court refused to set aside the decree in spite of the fact that appellant's evidence was closed on second occasion only. According to learned counsel for the appellant it had resulted into grave injustice to the appellant-defendant. Learned counsel for the appellant even requested this Court to issue direction to the appellant to furnish the grounds why he did not appear on the second occasion in the trial court when case was fixed for his evidence. The facts of the case are peculiar because of the reason that appellant-defendant's whose evidence was closed on second occasion by the trial court wants to challenge the order of the trial court without showing any reason either before the trial court or before the first appellate court or even before second appellate court under impression that all the presumptions should be drawn in favour of the person, who was negligent in performing his duties in court proceedings and under assumption that even if party does not give any reason for his fault or absence even then court should ask the party why he defaulted. Contrary to it, the law as provided in the Civil Procedure Code specifically provides that court is required to record reason for adjourning the case. Therefore, the contention of the appellant runs just 3 opposite to the statutory provisions for grant of adjournments. It is very easy to make prayer for indulgence with folded hands, but the court should if will be benovalent to such negligent persons, which may even result into benovalence towards an unwilling person in contesting the suit in fact is a harassest attitude towards the person, who wants justice in time. Not only that there was no reason disclosed by the appellant for his absence during trial in the court for giving evidence but, thereafter also, he could not provide any reason before the trial court for giving opportunity to lead evidence and he did not submit any application before the trial court for said relief. The appellant should have requested the trial court itself for giving opportunity to lead evidence by presenting himself and his witness in court and upon refusal by the trail court, he had opportunity to give reasons in the memo of appeal before the first appellate court to show his bonafides then he had opportunity to give facts in second appeal by pleading in the memo of appeal itself the ground for indulgence. In absence of reason for setting aside order of trial court closing evidence of appellant-defendant, the order of the trial court cannot be set aside nor the appellant can be given any permission to produce evidence by 4 setting aside the judgment and decree passed by the two courts below and for re-trial of the suit. The closure of evidence on any occasion itself cannot be declared illegal because of less number of opportunities granted. The adjourning of the case without any reason may be objected but not adjourning the case when no reason exists, cannot be objected. Since in the present case, the plaintiff's evidence was accepted by the two courts below and there is no rebuttal evidence and no substantial questions of law are involved in this second appeal, therefore, the appeal of the appellant is dismissed. (PRAKASH TATIA), J. c.p.goyal/-