1 S.B. Civil Writ Petition No.8455 of 2007. Kamla Devi Vs. Smt. Chanda Bai & Another IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Writ Petition No.8455 of 2007. Kamla Devi wife of Shri Murlidhar Bajari VERSUS Smt. Chanda Bai wife of late Shri Chhotu Kumhar and Another Date of Judgment :::: 13/08/2009 Hon'ble Mr. Justice Dalip Singh Mr. Jai Prakash Gupta, Counsel for the Petitioner None present for the respondents Per Court : Heard learned counsel for the petitioner. Perused the impugned order dated 25.07.2007 (Annexure-8) passed by the Additional Civil Judge (Senior Division) No.1 Beawar by which the application submitted by the petitioner-plaintiff on 19.01.2004 for taking the affidavit, filed by the plaintiff-petitioner on record and allowing her to appear in the witness-box for the cross-examination after setting aside the order closing the plaintiff's evidence dated 10.11.2003 has been dismissed. 2 S.B. Civil Writ Petition No.8455 of 2007. Kamla Devi Vs. Smt. Chanda Bai & Another The circumstances under which the order dated 10.11.2003 came to be passed by which the plaintiff's evidence was closed have been enumerated in the application and which have also come in the impugned order are that the plaintiff- petitioner resides at Kolkota and was to appear for giving her statement in the Court on 10.11.2003. On 01.11.2003 the husband of the petitioner fell ill and in support of the above, necessary medical certificates etc., were placed on record before the learned Court below, along with the application dated 19.01.2004. To corroborate the fact that the petitioner-plaintiff intended to appear in the Court on the date fixed i.e. 10.11.2003, the petitioner has also filed photo copies of the railway reservation tickets for her travel from Howrah to Beawar on 07.11.2003. The submission of the plaintiff in the application was that due to the aforesaid unforeseen circumstances the plaintiff had to remain in Kolkota to look after her husband, who was admitted in the hospital with heart trouble on 01.11.2003 and, therefore, she had to cancel her visit to Beawar for appearing before the Court. The learned trial Court has relied upon the provisions of Order 18 Rule 17 and 17 (A), C.P.C. while rejecting the prayer of the plaintiff for affording an opportunity and reopening the evidence of the plaintiff. 3 S.B. Civil Writ Petition No.8455 of 2007. Kamla Devi Vs. Smt. Chanda Bai & Another Notices were issued by this Court to the respondents to show-cause on 11.10.2007 and the further proceedings before the learned trial Court were also ordered to be stayed. Despite service of the show-cause notice, none appeared from the side of the defendant-respondents before this Court, as is recorded in the order-sheet dated 02.01.2008. In-spite of the above, the case was adjourned by this Court to afford an opportunity to the respondents to appear, but none appeared and consequently this Court admitted the petition vide order dated 08.08.2008 and issued fresh notices to the respondents after admission. Despite service of the notices after admission, none has appeared for the respondents, despite service having been affected, as is apparent from the note-sheet of the Office dated 22.01.2009. It is, in these circumstances, this petition has come to be heard by this Court finally in the absence of the non- petitioners. The present suit was filed in the year 1986 and the plaintiff was to appear in the witness-box on 10.11.2003. On the fateful day i.e. on 10.11.2003, as per the contents of the application filed by the plaintiff, the plaintiff-respondents fell ill all of a sudden on 01.11.2003 and, therefore, the plaintiff had 4 S.B. Civil Writ Petition No.8455 of 2007. Kamla Devi Vs. Smt. Chanda Bai & Another to cancel her visit to Beawar for appearing before the Court on 10.11.2003. These facts are corroborated and have not been disputed. There appears to be a sufficient cause for the non- appearance of the plaintiff before the Court on 10.11.2003 and the Court cannot be said to be helpless in granting an adjournment when there is sufficient cause for the non- appearance of the plaintiff or the witness concerned before the Court. Once sufficient cause is made out, the Court has the jurisdiction to do complete justice and for that purpose in the interest of justice an opportunity could have been afforded to the plaintiff to appear before the Court and lead evidence, which could have saved six years of pendency of the suit. The learned trial Court in rejecting the application, despite substantial proof having been placed before the Court, which remained uncontroverted with regard to the bona-fide of the plaintiff for the non-appearance before the Court on 10.11.2003 has committed a jurisdictional error and the failure on the part of the Court to exercise jurisdiction in allowing the application has resulted in failure of justice. Accordingly, the impugned order is set aside. 5 S.B. Civil Writ Petition No.8455 of 2007. Kamla Devi Vs. Smt. Chanda Bai & Another The application dated 19.01.2004 is allowed. The order dated 10.11.2003 is set aside. The petitioner has already filed the affidavit before the learned trial Court. The petitioner would appear before the learned trial Court on the next date, which is already fixed and submit herself for cross-examination on the affidavit, which has already been filed before the Court. The writ petition is accordingly disposed of. No further time shall be allowed to the petitioner for cross-examination on the affidavit of the petitioner-plaintiff. (Dalip Singh) J. ashok/