NITA ABBOT Vs. GITA MARWAHA

JUDGEMENT

(1.) BY way of the present petition under Article 227 of the Constitution of India, the petitioners have assailed order dated 26 th April, 2013 passed by learned Trial Court in a suit for partition, declaration and injunction filed by the respondent (plaintiff therein) against the petitioners (defendants therein).

(2.) WHEN the matter was fixed for evidence of the petitioners before the learned Trial Court, petitioner No.1 sought an adjournment on the ground that her counsel had gone out of town for some religious ceremonies. The learned Trial Court vide the order dated 21 st October, 2011, closed the right of the petitioners for examination of the witneses.

(3.) THE learned Trial Court while deciding the review application observed that the issues in the matter were framed on 10th February, 2009 and thereafter, on the very first date i.e. 12th May, 2009, the respondent examined his witnesses and closed his evidence. Thereafter when the matter was listed for evidence of the petitioners', on 12th August, 2009, 20th October, 2009 and 14th December, 2009, either no one was present from the petitioners' side or an adjournment was sought by them. In the order dated 2nd February, 2010 the learned Trial Court recorded the conduct of the petitioners and directed that no other opportunity would be granted to the petitioners to lead their evidence and gave one more opportunity. However, on 22nd March, 2010, 12th May, 2010, 4th August, 2010 and 6th December, 2010, when the matter was subsequently listed, no witnesses were examined by the petitioners for one reason or the other. On 24 th January, 2011, when none appeared on behalf of petitioner Nos.1 and 3, they were proceeded ex - parte. However, on 21st July, 2011, the ex -parte order was set aside subject to the payment of cost and last and final opportunity was given to the petitioner Nos. 1 and 3 to conclude their evidence on 21st October, 2011. However again, on 21st October, 2011, an adjournment was sought stating that the counsel for petitioner Nos. 1 and 3 had gone to Gaya for some religious rites and ceremonies. On the said date, the learned Trial Court observed the conduct of the petitioners in its order.