- (1.) THIS writ petition has been filed by the petitioner -plaintiff challenging order dated 17.10.2014 passed by Additional Senior Civil Judge No. 2, Jaipur Metropolitan (for short 'the Trial Court') whereby right of the petitioner -plaintiff to produce evidence has been closed and order dated 08.12.2014 passed by the Trail Court whereby application filed by the petitioner for opening of evidence of the petitioner has been dismissed.
(2.) BRIEFLY stated the facts of the case are that the petitioner -plaintiff filed a suit for permanent and mandatory injunction against the respondent -respondent. The respondent -defendant filed written statement and denied all the averments made by the petitioner in the suit. Thereafter, suit was fixed for petitioner's evidence, but the Trial Court vide order dated 17.10.2014 closed evidence of the petitioner -plaintiff. Thereafter, the petitioner filed application on 19.11.2014 for opening her evidence, but the Trial Court vide order dated 08.12.2014 dismissed that application filed by the petitioner. Being aggrieved by both the aforesaid orders, the petitioner has filed instant writ petition before this Court.
(3.) MR . M.C. Jain, learned counsel for the petitioner has argued that the Trial Court has failed to appreciate and consider the correct position of the case in right perspective. The Trial Court without adverting to all the facts of the case has passed the impugned orders in a cryptic manner. The Trial Court has failed to consider that the petitioner -plaintiff tendered her evidence by way of affidavit on 04.07.2011 to be read as her examination -in -chief and passed order dated 17.10.2014 on account of non filing of the affidavit or not appearing for the evidence. The petitioner has been deprived of her valuable right of defence in her own suit on account of closing her evidence by the Trial Court resulting into miscarriage of justice. If the petitioner is not allowed to produce her evidence, the Trial Court will decide the suit field by the petitioner on the basis of evidence produced by the respondent -defendant which will cause great hardship to the petitioner. The petitioner was present before the Trial Court on 11.07.2014 for her evidence, but on that day, work was suspended, therefore, she could not be examined, but the Trial Court has passed the impugned orders in hasty manner. The petitioner is a female and resides 150 kms away and she could not remain present before the Trial Court for some personal reason. Learned counsel for the petitioner has further submitted that provisions of Order 17 Rule 2 of Civil Procedure Code empowers the Trial Court to impose a cost in case, the Court is of the opinion that too many adjournments have been taken. It is, therefore, prayed that the impugned orders be quashed and set aside and the petitioner be granted one last opportunity to adduce her evidence. I have heard learned counsel for the petitioner -plaintiff and carefully examined the material on record. Perusal of the copies of order sheets of the Trial Court placed on record by the petitioner indicates that the suit in the present case was filed by the petitioner -plaintiff in the year 2010 which was registered on 11.01.2010, on which date, application of the petitioner under Section 80 CPC was allowed and summon was issued to respondent -defendant for 12.01.2010. On 12.01.2010, summon was received served, but no one appeared on behalf of the respondent -defendant, therefore, ex -parte proceedings were initiated against the respondent -defendant and the matter was fixed for 02.02.2010, on which date counsel for the respondent appeared before the Trial Court and filed an application under Order 9 Rule 7 CPC, copy of which was provided to the counsel for the petitioner -plaintiff and matter was fixed on 04.03.2010 for reply and arguments on that application. Thereafter on two dates, i.e., 04.03.2010 and 09.03.2010, the petitioner -plaintiff sought time to file reply to aforesaid application. On 16.03.2010, reply was filed by the petitioner -plaintiff and the matter was fixed for arguments on the application for 10.04.2010. On 10.04.2010, Trial Court allowed the application and set aside order dated 12.01.2010 whereby ex -parte proceedings were ordered to be initiated against the respondent -defendant and the matter was fixed for reply/written statement to the suit on 14.05.2010.;