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2000 DIGILAW 1242 (RAJ)

Sumer Club Kishangarh (Shri) v. Kanhaiyalal

2000-10-11

ARUN MADAN

body2000
JUDGMENT 1. - This civil revision petition arises out an order dated 8.8.2000, of the learned Civil Judge (11)) Kishangarh (Ajmer) in Civil Suit No. 121/92, whereby he dismissed plaintiff's application having been moved under section 151 r/w. O. 47 CPC on 7.8.2000 for recalling order dated 24.7.2000 closing his evidence. 2. It is a case where the plaintiff has failed to prosecute his suit proceeding diligently. The plaintiff instituted suit for eviction inter (ilia on the grounds:- (i) default, (ii) material alteration, & (iii) sub-letting. Issues were framed on 2.5.2.1997 where after the proceedings were adjourned on several dates till 24.7.2000. In the meantime, the trial Court had also ordered on 18.5.1998 to proceed ex-parte against the defendant inasmuch as the defendant admittedly has not applied for setting aside order for ex-parse proceedings update. 3. Thus admittedly the plaintiff took more than about three years to lead his evidence, during which several chances were given to him by adjourning the proceedings on the dates detailed out in the impugned order but he failed to utilise best time for producing his witnesses and leading his any other oral as well as documentary evidence when the ex-parte proceedings against the defendant were being ordered. In my considered view, in case the defendant did not apply for setting aside order of ex-parte proceedings against him, it cannot be made a ground entitling the plaintiff to the benefit for the lapses on the part of defendant. In other words the plaintiff Cannot be allowed to plead that since the ex-parte proceedings against the defendant could not have been set aside, he could not have led his evidence. Rather, in my considered view, the plaintiff had best chance to have Led his oral as well as documentary evidence by taking benefit of order of ex-parte proceeding against the defendant. Hence having failed to utilise the best chance, the plaintiff must suffer for his lapses. Rather, in my considered view, the plaintiff had best chance to have Led his oral as well as documentary evidence by taking benefit of order of ex-parte proceeding against the defendant. Hence having failed to utilise the best chance, the plaintiff must suffer for his lapses. 'The trial Court having given several chances by adjourning the proceedings for leading plaintiff's evidence right from the date the issues were framed on 25.2.1997 till 24.7.2000, committed no error of law in exercise of its jurisdiction firstly in having ordered for closing plaintiff's evidence on 24.7.2000 and second in having not recalled its earlier order dated 24.7.2000 while rejecting plaintiff's application dated 7.8.2000 by its impugned order dated 8.8.2000, which in my considered view is based on well established cannons of law and does not warrant by interference by invoking revisional jurisdiction as it does not smack of illegality, material irregularity or result in miscarriage of justice nor it can be said to have been passed in excess of jurisdiction. 4. Consequently, I do not find any merit in any of the 'contentions advanced on behalf of the plaintiff (petitioner) and, therefore, this revision petition being devoid of any merit is dismissed in limine.Revision dismissed. *******