1 S.B. CIVIL WRIT PETITION NO.10670/2009. Pushpa Devi Vs. Rajesh Kumar & Ors. .... Date of Order :: 20th November 2010. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Hemant Ballani, for the petitioner. Mr. Anish Ahmed, for the respondents. .... BY THE COURT: This writ petition is directed against the order dated 30.07.2009 (Annex.8) whereby the Civil Judge (Senior Division) No.3, Bikaner rejected the application moved by the petitioner for reopening of evidence and for an opportunity to produce the witness in Civil Misc. Case No.1/2006. Shorn of unnecessary details, suffice is to notice for the present purpose that the petitioner-applicant has filed an application under Order XXXIX Rule 2A of the Code of Civil Procedure complaining of disobedience of the order passed by the Trial Court on 12.11.2003 in the application for temporary injunction moved in the pending suit. During the course of proceedings in the said application, the petitioner-applicant filed her affidavit and the affidavit of the witness Shri Yogendra Pandey on 03.01.2009. It appears from the order-sheets placed on record as Annexure-5 that though the matter was fixed on 03.02.2009 for cross- examination of the witnesses but the proceedings were adjourned for the members of the Bar abstaining from work. Thereafter, on 02.03.2009, upon the applicant seeking time, 2 the case was adjourned on costs of Rs.100/-. On the next date, though no witness was present but again, the members of the Bar abstained from work and the matter was adjourned to 16.04.2009. Then on 16.04.2009, the learned Presiding Officer was not available and the case was adjourned to 12.05.2009. Thereafter, on 12.05.2009, the statement of the petitioner Pushpa Devi was recorded as AW-1; and while observing that no other witness was sought to be produced, the matter was posted for the non-applicant's evidence on 23.05.2009. On 23.05.2009 again, the case was adjourned to 18.07.2009 for the members of the Bar abstaining from work. Thereafter, on 18.07.2009, the petitioner moved the application with the submissions that the witness Yogesh Pandey could not appear in the Court earlier for illness; and prayed that by reopening the evidence, she be afforded one opportunity to lead evidence. The learned Trial Court, however, found no justification to grant the application moved by the petitioner and rejected the same while observing that sufficient opportunities had already been extended and there was no cogent and convincing reason stated by the petitioner for not producing the witness on the relevant date. It is submitted that the learned Trial Court has proceeded with a hyper-technical approach while ignoring the relevant facts that even if the matter was listed 5-6 times for evidence, apparently on 4 such occasions, no proceedings could be taken up for either the learned members of the Bar abstaining from the work or the Presiding Officer being not 3 available. It is submitted that in the given set of circumstances, granting of an opportunity would have only served the cause of justice rather than causing any prejudice to the other side. The learned counsel for the petitioner submitted that the petitioner is ready to adduce the entire evidence on the given date. Though the learned counsel for the non-petitioner has duly supported the order impugned but could not dispute the facts as noticed above that on several of the occasions, no further progress was made in the case because of the reasons beyond the control of the petitioner. During the course of submissions, the counsel for the parties have also informed that the matter is now fixed in the Trial Court on 08.12.2010. Having regard to the overall facts and circumstances, without much dilatation on any other aspect, suffice is to observe that in the present case, the conduct of the petitioner cannot be said to be calculated at protracting or dragging the proceedings unnecessarily. On several of the occasions particularly on 03.02.2009, 19.03.2009 and 23.05.2009 the case could not register progress for the members of the Bar abstaining from work and on 16.04.2009, the learned Presiding Officer was on leave. It, of course, appears that on 12.05.2009 an observation came to be made that no other witness was sought to be produced but on the immediately next effective date of proceedings i.e., 18.07.2009, the petitioner moved the application pointing out the ailment of the witness Shri Yogendra Pandey whose affidavit had already been filed. When the affidavit of the witness was indeed filed on 03.01.2009, there does not appear any reason for which 4 the petitioner would be intentionally avoiding to produce the witness. In the totality of circumstances, even if there had been some shortcomings in the conduct of the petitioner, in the opinion of this Court, interest of justice would have served if the learned Trial Court extended an opportunity while imposing costs on the petitioner. Granting of an opportunity would only have served the case of justice rather than defeating it. In the given set of facts and circumstances, it appears appropriate that the petitioner be extended an opportunity to lead evidence on payment of costs of Rs.2,000/- to the contesting non- petitioners on the next date of hearing in the Trial Court. Accordingly, this writ petition succeeds and is allowed to the extent and in the manner indicated above; the impugned order dated 30.07.2009 is set aside; and the application moved by the petitioner on 18.07.2009 is allowed in the manner that the petitioner is extended an opportunity to produce the witnesses and complete her evidence on 08.12.2010 subject to payment of costs in the sum of Rs.2,000/- (two thousand) to the contesting non-petitioners. The payment of costs shall be a condition precedent for the petitioner's leading evidence on 08.12.2010. It is also made clear that no further opportunity shall be extended to the petitioner for leading evidence. (DINESH MAHESHWARI), J. MK