SBCSA NO.424/2005– SMT. PUSHPA V/S SMT. PUSHPA . . : JUDGMENT DATED 17.9.2008 1/4 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.424/2005 Smt. Pushpa W/O Sh. Ranjeet Mal Bhandari versus Smt. Pushpa. W/O Sh. Sidh Raj Surana PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.D.K.Parihar, for the appellant. Mr.R.K.Thanvi, for the respondents. DATE OF ORDER : 17th September, 2008. O R D E R 1. Heard the learned counsels for the parties. 2. Following substantial question of law has been framed for consideration by this Court: “Whether the trial court committee error of law in closing the evidence of the plaintiff despite the fact that SBCSA NO.424/2005– SMT. PUSHPA V/S SMT. PUSHPA . . : JUDGMENT DATED 17.9.2008 2/4 on 16.3.2004 itself, an application was submitted on behalf of the plaintiff's advocate that the plaintiff's advocate has suffered accident, therefore, he is not in position to come to Court and the first appellate court did not consider this aspect of the matter?” 2. The learned counsel for the appellant submits that on the date when the plaintiff's evidence was closed by the learned trial Court, the advocate appearing for the plaintiff could not appear before the trial Court on account of his meeting an accident and therefore, he could not go the Court. The learned trial Court, therefore, closed the plaintiff's evidence and dismissed the suit for eviction by order dtd.17.5.2004. The appeal filed by the plaintiff also came to be dismissed by the learned first appellate Court on 27.11.2004. The Courts below have observed that after giving last opportunity to the plaintiff to produce his evidence on 13.12.2003, on the next date 16.3.2004 also when no witness appeared to support the case of the plaintiff, the learned trial Court closed the said evidence and dismissed the suit. The learned counsel for the appellant submits that the learned trial Court has erred in closing the plaintiff's evidence as the plaintiff was prevented by sufficient and reasonable cause in not SBCSA NO.424/2005– SMT. PUSHPA V/S SMT. PUSHPA . . : JUDGMENT DATED 17.9.2008 3/4 getting the witnesses examined as the advocate appearing for the plaintiff had met with an accident and could not appear in the Court on the said date 16.3.2004. It is also brought to the notice of the Court that the plaintiff had filed an application in this regard after the order relating to closure of evidence was passed by the learned trial Court bringing to the notice of the learned trial Court that the advocate concerned had met with an accident and therefore, the appellant was prevented by sufficient cause in appearing before the Court. 3. On the said opposite, the learned counsel for the defendant – respondent submits that since no evidence was produced before the learned trial Court about the advocate of the plaintiff having met some accident, the trial Court was justified in closing the plaintiff's evidence and decreeing the suit by dismissal thereof. 4. The learned counsel for the appellant submits that even at this stage, if the matter is restored back to the learned trial Court for trial and the plaintiff is allowed to produce his witnesses, he is ready and willing to pay reasonable cost to compensate the loss if any caused to the defendant in this regard. SBCSA NO.424/2005– SMT. PUSHPA V/S SMT. PUSHPA . . : JUDGMENT DATED 17.9.2008 4/4 5. Having heard the learned counsel and upon perusal of the record of the case, this Court is of the opinion that the learned Courts below have erred in rejecting the suit of the plaintiff closing the plaintiff's evidence on16.3.2004 as the plaintiff and his witnesses were prevented by sufficient cause on account of absence of advocate for the plaintiff who unfortunately met with an accident, the fact which was brought to the Court on that very day and therefore, this appeal deserves to be allowed and the plaintiff deserves to be afforded one more opportunity to produce his witnesses in support of his case. 6. Accordingly this appeal is allowed and the impugned judgment and order dtd.27.11.2004 and17.5.2004 are set aside and the suit is restored to the learned trial Court and the plaintiff may produce all his witnesses before the learned trial Court in the first instance on 14.10.2008 and the plaintiff shall also pay cost of Rs.1000/- to the defendant. (Dr.VINEET KOTHARI)J. Item No.24 Ss/-