Med Cert Jan2012

S.B. CWP No.
18146/2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR
O R D E R
S.B. Civil Writ Petition No. 18146/2011
S.B. Civil Misc. Stay Application No. 16652/2011
Smt. Malla Devi V/s. Civil Judge (Jr.Div.) First Class, Srimadhopur,
District Sikar & Ors.
6th January, 2012
Date of Order :
HON'BLE MR. JUSTICE MAHESH BHAGWATI

Mr. Gajendra Sharma, for the petitioner.
By way of the instant writ petition,

the
petitioner has
beseeched
to quash
and
set aside the order dated 5th August, 2011,

whereby the learned Civil Judge, (Jr.Div.),
First
Class,
Srimadhopur,
closed
the
evidence of the petitioner-plaintiff.

2.
the
Having heard the learned counsel for

petitioner
material
order,
on
it is
plaintiff
and
carefully
record
including
noticed
filed
perused
the
that the
suit
for
the
impugned
petitionerpermanent
injunction against the respondent nos. 2 to

5 in the court of Civil Judge, Jr. Division,
Srimadhopur. On the notices being issued to
the respondents, they appeared and filed the
written
statement
of
defence,
which
was
S.B. CWP No. 18146/2011
taken
on record
by
the court.
Thereafter,
the court settled the issues and commenced

the
trial
of
the
suit.
The
petitioner-
plaintiff was afforded ample opportunity to

produce the evidence, but the petitioner did
not
endeavour
herself
in
to
the
even
court
put
and
appearance
despite
of
having
given numerous opportunities, the plaintiff

failed to produce the evidence, resultantly,
the learned trial court closed the evidence
on
5th
August,
2011.
Aggrieved
with
this
order, the petitioner-plaintiff has invoked

the
extra-ordinary
jurisdiction
of
this
Court under Article 227 of the Constitution.

3.
Learned counsel for the petitioner
canvassed
that
on
5th
August,
2011,
the
petitioner-plaintiff could not appear in the

court
on
account
of
the
reason
that
her
daughter-in-law was ill. The plaintiff is an

old lady and her husband has been living out
of
India. Despite
that,
the learned
trial
court did not consider all these facts and

arbitrarily
closed
the
evidence
merely
on
the ground that the petitioner did not file

the medical certificate of her daughter-inlaw
having
been
ill.
Hence,
the
impugned
S.B. CWP No. 18146/2011
order deserves to be set aside.

4.
Having
carefully
scanned
the
impugned order, it is intelligibly revealed

that the issues were settled by the court on
27th
November,
2009,
thereafter,
case
remained
pending
merely
recording
the
evidence
of
petitioner-plaintiff.
The
suit
was
evidence
the
adjourned
on
for
the
for
the
numberless
plaintiff's
times.
In
the
beginning, the suit appeared for recording

the evidence of plaintiff on 15th December,
2009, thereafter, it was adjourned to 18th
December,
2009,
5th
January,
2010,
17th
February, 2010, 6th April, 2010, 13th April,

2010,
1st
September,
2010,
20th
September,
2010, 26th October, 2010, 7th December, 2010,

11th January, 2011, 8th February, 2011, 22nd
February, 2011, 23rd March, 2011, 19th April,
2011, 10th May, 2011 and 5th July, 2011. In
between,
the
petitioner-plaintiff
was
granted last opportunity three times. As the

court was liberal in granting adjournments
for
producing
the
petitioner-plaintiff,
evidence
in
the
same
to
the
manner,
the petitioner-plaintiff was utmost careless

and negligent in flouting the orders of the
S.B. CWP No. 18146/2011
court.
Despite
plaintiff
ordinary
has
that,
dared
to
jurisdiction
of
the
petitioner-
invoke
the
extra-
this
Court
under
Court
has
Article 227 of the Constitution.

5.
The
Hon'ble
Apex
deprecated the practice of giving more than

three adjournments to either of the parties
in toughened words in the case of M/s. Shiv
Cotex
Versus
Tirgun
Auto
Plat
P.Ltd.
&
Others reported in 2011 AIR SCW 5789, as

under:16.No litigant has a right to
abusetheprocedureprovidedinthe
CPC. Adjournments have grown like
cancercorrodingtheentirebodyof
justicedeliverysystem.Itistrue
thatcaponadjournmentstoaparty
during the hearing of the suit
providedinprovisotoOrderXVII,
Rule1,CPCisnotmandatoryandin
a suitable case, on justifiable
cause, the court may grant more
thanthreeadjournmentstoaparty
foritsevidencebutordinarilythe
cap provided in the proviso to
OrderXVII,Rule1, CPCshould be
maintained.
When
we
say
'justifiablecause'whatwemeanto
S.B. CWP No. 18146/2011
sayis,acausewhichisnotonly
'sufficient cause' as contemplated
insubrule(1)ofOrderXVII,CPC
butacausewhichmakestherequest
for adjournment by a party during
the hearing of the suit beyond
three adjournments unavoidable and
sortofacompellingnecessitylike
sudden illness of the litigant or
thewitnessorthelawyer;deathin
the family of any one of them;
natural calamity like floods,
earthquake,etc.intheareawhere
any of these persons reside; an
accidentinvolvingthelitigantor
thewitnessorthelawyeronwayto
thecourtandsuchlikecause.The
list is only illustrative and not
exhaustive.However,theabsenceof
thelawyerorhisnonavailability
because of professional work in
othercourtorelsewhereoronthe
groundofstrikecallorthechange
of a lawyer or the continuous
illness of the lawyer (the party
whom he represents must then make
alternative arrangement well in
advance) or similar grounds will
not justify more than three
adjournmentstoapartyduringthe
hearing of the suit. The past
conduct of a partyinthe conduct
S.B. CWP No. 18146/2011
oftheproceedingsisanimportant
circumstancewhichthecourtsmust
keepinviewwheneverarequestfor
adjournmentismade.Apartytothe
suit isnotat liberty to proceed
with thetrialat itsleisure and
pleasure and has no right to
determine when the evidence would
be let in by it or the matter
shouldbe heard.The partiestoa
suit whether plaintiff or
defendant must cooperate with
thecourtinensuringtheeffective
work on the date of hearing for
whichthematterhasbeenfixed.If
theydon't,theydosoattheirown
peril. Insofar as present case is
concerned,ifthestakeswerehigh,
the plaintiff ought to have been
more serious and vigilant in
prosecutingthesuitandproducing
its evidence. If despite three
opportunities,noevidencewaslet
in by theplaintiff, inour view,
it deserved no sympathy in second
appeal in exercise of power under
Section 100, CPC. We find no
justification at all for the High
Court in upsetting the concurrent
judgment of the courts below. The
HighCourtwasclearlyinerrorin
givingtheplaintiffanopportunity
S.B. CWP No. 18146/2011
to produce evidence when no

justification for that course
existed.
6.
Adverting
to
the
facts
of
the
instant case, it is revealed that the case

of the petitioner is squarely covered by the
afore-stated judgment of the Hon'ble Supreme
Court.
The petitioner-plaintiff was granted
more than 15 adjournments for producing the

evidence, despite that, she utterly failed
to produce even a single witness, hence, the
writ
petition being
force,
deserves
to
totally
be
devoid of
dismissed
any
with
the
above,
the
exemplary cost.
7.
writ
For
the
petition
reasons
fails
and
stated
the
same
being
bereft of any merit stands dismissed as to

the cost of Rs. 2,000/- in limine.
8.
Consequent upon the dismissal of the
writ petition, the stay application does not

survive and the same also stands dismissed.
(MAHESH BHAGWATI),J.
Mak/15
All Corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
S.B. CWP No. 18146/2011
8
Anil Makawana
Jr. Personal Assistant

Med Cert Jan2012

Uploaded by

Copyright:

Available Formats

Med Cert Jan2012

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Med Cert Jan2012

Uploaded by

Copyright:

Available Formats

S.B. CWP No.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

S.B. Civil Misc. Stay Application No. 16652/2011

HON'BLE MR. JUSTICE MAHESH BHAGWATI

By way of the instant writ petition,

set aside the order dated 5th August, 2011,

evidence of the petitioner-plaintiff.

Having heard the learned counsel for

injunction against the respondent nos. 2 to

S.B. CWP No. 18146/2011

the court settled the issues and commenced

plaintiff was afforded ample opportunity to

given numerous opportunities, the plaintiff

order, the petitioner-plaintiff has invoked

Court under Article 227 of the Constitution.

Learned counsel for the petitioner

petitioner-plaintiff could not appear in the

daughter-in-law was ill. The plaintiff is an

court did not consider all these facts and

the ground that the petitioner did not file

S.B. CWP No. 18146/2011

order deserves to be set aside.

impugned order, it is intelligibly revealed

beginning, the suit appeared for recording

February, 2010, 6th April, 2010, 13th April,

2010, 26th October, 2010, 7th December, 2010,

granted last opportunity three times. As the

the petitioner-plaintiff was utmost careless

S.B. CWP No. 18146/2011

Article 227 of the Constitution.

deprecated the practice of giving more than

Others reported in 2011 AIR SCW 5789, as

S.B. CWP No. 18146/2011

S.B. CWP No. 18146/2011

S.B. CWP No. 18146/2011

to produce evidence when no

instant case, it is revealed that the case

The petitioner-plaintiff was granted

more than 15 adjournments for producing the

bereft of any merit stands dismissed as to

Consequent upon the dismissal of the

writ petition, the stay application does not

S.B. CWP No. 18146/2011

You might also like