-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.4118 of 2010 Smt. Kaushalya Devi Bhatia wife of late Shir Om Prakash Bhatia VERSUS Smt. Chhaya Bhatia wife of late Shri Vijay Kumar Bhatia and Others Date of Order :::: 7th April 2010 Hon'ble Mr. Justice Dalip Singh Shri Vikas Jain, Counsel for the Petitioner Ms. Jyoti Tanwar, on behalf of Shri S.K. Gupta, Counsel for the Respondents *** By the Court : In this writ petition filed by the defendant-petitioner challenge has been made to the order passed by the learned trial Court dated 11.11.2009 by which the learned trial Court has closed the evidence of the defendant-petitioner and the subsequent order dated 20.01.2010 by which the application submitted by the petitioner dated 10.12.2009 for recalling the order dated 11.11.2009 and permitting the defendant-petitioner to lead the evidence has been rejected. In the instant case, the defendant-petitioner filed her affidavit on 28.02.2006 and at the same time an application was also filed for taking on record certain documents. It is submitted by the learned counsel for the petitioner that the learned trial Court heard and decided the application for taking on record the documents only on 27.11.2008 and as such the -2- question of cross-examination of the defendant-petitioner on the affidavit does not arise. On 27.11.2008 the learned trial Court rejected the application and fixed the case for cross-examination of the defendant-petitioner on 15.01.2009. It was submitted that before the date fixed, on 17.12.2008 the petitioner met with an accident in which the petitioner sustained injuries on account of which she had to be operated for the fracture of the neck and of the femur bone of the left leg. It is submitted by the learned counsel that on account of the aforesaid injuries the petitioner could not appear before the learned trial Court for the purposes of her cross-examination and on 11.11.2009 also the petitioner could not appear on this ground. In support of the above, the petitioner has submitted certain certificates by way of Annexure-2. Learned counsel, therefore, submitted that the absence of the petitioner and not having made herself available for cross- examination was not intentional, but bonafide. Learned counsel appearing for the respondents, on the other hand, contended that the case was fixed for the evidence of the defendant right from 26.09.2005 and sufficient opportunities were given to the defendant by the learned trial Court to appear before the Court for the purposes of the cross-examinations, but the defendant has been delaying the proceedings. I have gone through the impugned orders dated 11.11.2009 and 20.01.2010 respectively and have considered the rival submissions. While it is a fact that the defendant-petitioner met with -3- an accident on 17.12.2008 i.e. prior to the date fixed 15.01.2009 for her cross-examination, but it is not clear as to why the defendant- petitioner could not appear before the Court on 11.11.2009. At the same time, no exception can be taken to the observations made by the learned trial Court that in case the defendant-petitioner was not in a position to appear before the Court, steps could have been taken for recording her statement in cross-examination through Commissioner to be sent by the Court upon an application being made for this purpose. The absence of any such steps and merely passage of time of over an year has not been explained. Learned counsel for the petitioner submitted that one opportunity may be granted to the petitioner and that the defendant- petitioner would appear in-person on the next date already fixed for the purposes of being cross-examined on the said date by the plaintiff as a last chance to secure the ends of justice as the petitioner is an old lady and also injured. In the interest of justice and while maintaining the balance of equities between the parties, I deem it just and proper to afford one last opportunity to the defendant-petitioner to appear before the Court on the next date already fixed for the purposes of cross-examination. Learned counsel for the petitioner has conceded that the petitioner is not interested in examining any other witness apart from the petitioner whose affidavit has already been filed. In view of the above, it is directed that the impugned orders are set aside. The learned trial Court shall permit the defendant to be cross-examined on the next date already fixed, if the -4- defendant appears before the learned trial Court on the said date. No further opportunity will be granted. The aforesaid indulgence is granted on the condition that the defendant-petitioner shall pay costs of Rs.2000/- to the plaintiff. Subject to the aforesaid condition of payment of costs, this writ petition stands allowed. (Dalip Singh), J. Ashok/