THE HON’BLE SRI JUSTICE VILAS V.AFZUL PURKAR C.R.P.No.1438 of 2009 ORDER This revision is by the petitioner - defendant in O.S.No.80 of 2002 whose right to give evidence as DW1 stood forfeited for his non- appearance on 10-12-2008. The petitioner has sworn to affidavit, explaining the reasons as to why she could not attend the Court in the morning on 10-12- 2008 and she has categorically stated that herself and her husband are not keeping good health and on that date at about 9- 00 AM, her husband developed breathing problem, whereupon, she requested her counsel to seek another date. She has also stated that in spite of the difficulty, she has attended the Court at about 11-00 A.M, by then, the suit was adjourned to 12-12-2008. Later, she came to know that her right to lead evidence was forfeited, therefore, she filed the application for setting aside the order dated 10-12-2008. Apparently, no counter was filed by the respondent-plaintiff. But, the Court below dis-allowed the petitioner’s application on the ground that there is no provision of law to set aside the order dated 10-12-2008. Heard both the learned counsel. It is apparent that the petitioner is aged 70 years when she filed the affidavit and is aged 77 years on the date of this revision petition. Her specific case was that she was unable to attend the Court on account of ailment and hospitalization of her husband and also her illness. The affidavit in lieu of chief examination was already filed by her and she was to subject herself to cross examination, but on the circumstances beyond her control on 10- 12-2008, she could not attend. The Court below should have duly considered her affidavit which remained un-controverted and granted one opportunity to her, so that she could subject herself to cross-examination and the suit itself would progresses further. Therefore, I am inclined to set aside the order impugned. However, the petitioner shall pay costs of Rs.1500/- to the counsel for the respondent within two weeks from today. On filing of the receipt of compliance, office shall send the record along with the order to the Court below and the Court below shall fix a date for cross-examination of DW1 and thereafter, complete the trial and dispose of the suit preferably before 31st December, 2010. Accordingly, the CRP is allowed. __________________________ VILAS V.AFZUL PURKAR,J rkk Dated: 16-11-2010