'.^":^ ^s^> ^-"^^^€ ^^a^^"^ ^..•-- &^e' ^ ^ •/' ^ IN THE CHHATTISGARH HIGH COURT AT BILASPUR w 19 . - -„ First Appea^No. ( 1 / 2006 MEMORANDUM QF FIRST APPEAL UNDER SECTION 28 OF THE HINDU MARRIAGE ACT APPELLANT PLAINTIFF .Tulsi Ram S/o Late Shri Manharan Lal, aged about 33 years, resident ofbehuid Minors Quarter College y Chirmiri, TahsU Manendragarh, DistrictKorea (CG). VERSUS . RESPONDENT :^ ,Smt. Satmpa W/o Tulsiram at ,,0EFENDANT ' Q * present residing at ViUage ^"Amaradandi, Amlai Colony, Dista-ict Shahdol (MP). ^ -^- ^' ^ HIGHCOURT OF CHHATTISGARH Aj BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar IVIishra FirstAppeal (M.) No.11 of 2006 Appellant Respondent versus Tulsi Ram Smt. Satrupa Present: Smt. Indira Tripathi, counsel for the appellant. No one appears for the respondent. First Appeal under Section 28 of the Hindu Marriaae Act ORAL JUDGMENT ith (Delivered on 9"' September, 2010) Heard. 2. This appeal underSection 28 ofthe HinduMarriageAct, 1955 has been preferred by the plaintiff, whose suit for grant of decree of divorce has been dismissed by the trial Court. 3. The divorce petition was filed on the pleading that the marriage had taken place on 16-4-1992. They were residing happily and a daughter was born, however, after 1996, the respondent left the marital home and went to her parental house without any justification. She moved an application under Section 125 of the Code of Criminal Procedure for grant of maintenance. On reconciliation, she came back to the house but again left the marital home. The plaintiff preferred an application for restitution of conjugal rights, which was decreed, however in spite of that, the ^^!SSSIi«f tiS3^iaSWS5SSSS':ySS:!:et:'f'sVSWSSSSSItWSSR respondent did not come back to the matrimotiial house to live with ^., the appellant. 4. The respondent contested the application by submitting that she was treated with cruelty. She has narrated various instances of commission of cruelty by the appellant. 5. Learned counsel for the appellant would submit that the trial Couri: wrongly closed the plaintiffs evidence on 20-1-2006 after rejecting the application under Order 17 Rule 1 of the Code of Civil Procedure. Learned counsel for the appellant would submit that the said order is contrary to law and that the appellant has not been granted proper opportunity to lead evidence. ^K Before considering the merits of the appeal, this Court would consider the question as to whether the trial Court was justified in closing the plaintiffs evidence when the plaintiff had not examined any witness. 7. On 20-1-2006, the plaintiff moved an application under Order 17 Rule 1 of the Code of Civil Procedure on the ground that the plaintiff is not well, therefore, he could not attend the Court and one opportunity should be allowed to lead evidence. Learned trial Court dismissed the application after observing that the several opportunities have been granted to the plaintiff and yet witnesses have not been examined, therefore, no further opportunity should be granted. The appellant moved another application under Order 18 Rule 4 of the Code of Civil Procedure on 1-7-2006, which was dismissed. i[KSjSj^j8sgi|(g|g^g'.g^g;'Bg^;^a;Bg^^ |j^^;S;.^'j^::^^ii;^^(:^^^'^.^^::^^;^;^:^:^^ ?'.-"i?,s'.S!!8HSSjIi^BgBB!SWg| ^: 8. In G.P.Srivastava vs. R.K.Raizada an^others, (2000) 3 SCC 54, the Hon'ble Supreme Court has held that when on previous dates prayer for adjournment was allowed on the request made by the parties, presumably because the Couri: was satisfied with the reason assigned for seeking adjournment, the said previous adjournments cannot be a ground to proceed ex parte or to close the evidence of a party on the date when such order was passed. In the present case, the plaintiff moved an application on 20-1-2006 for adjournment on the ground that he is not well. While rejecting the application, the learned trial Court has not discussed the reason and ground shown in the application for seeking adjournment and the same was dismissed on the ground that adjournments have been granted on earlier occasions. The trial Court has not observed or recorded a finding that the prayer for adjournment made on that date, i.e., 20-1-2006 has not been made on any justifiable ground. Thus, the order refusing adjournment and closing the plaintiff's right to lead evidence was not passed in accordance with law. 9. The first appeal is, therefore, allowed on this ground because in the absence of plaintiff's evidence, he has not been granted property opportunity to prove his case. The impugned judgment and decree is set aside. The matter is remanded to the trial Court to decide it afresh after giving opportunity to lead evidence to both the pari:ies. Sd//- prashantKumarMishra Judge ^ <7 111.1