--1-- C.M.P. No. 782 of 2023 IN THE HIGH COURT OF JHARKHAND, RANCHI C.M.P. No. 782 of 2023 ---- Shambhu Halwai, aged about 60 years, son of Late Lachho Ram Halwai, resident of village – Chatro, PO and PS – Deori, District – Giridih .... Petitioner -- Versus -- Naresh Ram, son of Late Jaipal Ram, resident of village – Purnabathan, PO and PS – Deori, District – Giridih .... Respondent ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner :- Mr. Sanjay Prasad, Advocate :- Mr. Abhay Kishore, Advocate :- Mr. Kamdeo Pandey, Advcoate For the Respondent :- Mr. Ashish Kumar, Advocate ---- 04/13.01.2025 Heard learned counsel appearing for the petitioner and learned counsel appearing for the sole respondent. 2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 06.05.2023 passed by learned Additional Civil Judge (Junior Division)-IX Giridih in O.S. No.89 of 2012 whereby the petition filed for recall of order dated 02.05.2018 and 28.05.2019 has been rejected. 3. Learned counsel appearing for the petitioner submits that the said original suit was instituted for declaration of the title in favour of the plaintiff. He submits that in the said suit the petitioner has appeared and filed the written statement and the suit was proceeded further. He further submits that the evidence of the plaintiff has been closed and by order dated 02.05.2018 and --2-- C.M.P. No. 782 of 2023 24.07.2018 the petitioner’s evidence has been closed and the matter is posted for hearing. He submits that the petitioner has not been able to appear before the learned Court due to prolong illness of his wife and during the pendency of the civil suit she left for her heavenly abode and in light of that this petition has been filed to recall and allow the petitioner to lead evidence on behalf of the defendant, however, the said has been rejected on the ground that the defence of defendant has already closed. He further submits that the petitioner will lead the evidence within a reasonable period of time and unnecessary adjournment he will not take. 4. Learned counsel appearing for the sole respondent submits that sufficient time was granted to the petitioner in spite of that he has not appeared and in view of that the learned Court has passed the said order and there is no illegality in the order. 5. It is an admitted position that the petitioner is the defendant in the pending suit and he has appeared and filed the written statement, however, later on he has not appeared and in view of that the order dated 02.05.2018 was passed by which the defence of the defendant was closed and the matter was posted for hearing. The petition filed before the learned Court is annexed as Annexure-5 wherein it is disclosed in paragraph No.3 that during the pendency of the suit the wife of the petitioner has left for her heavenly abode and due to her ailment, the petitioner was not able to take steps in the pending suit. The death certificate is also --3-- C.M.P. No. 782 of 2023 annexed with the said petition. Learned court has not considered this aspect of the matter in the order by which the recall petition has been rejected. Prima facie it appears that due diligence is there and sufficient cause is shown of not appearing before the learned Court and the suit is pending at the stage of argument. 6. In view of the above, the impugned order dated 06.05.2023 passed by learned Additional Civil Judge (Jr. Division)-IX, Giridih in O.S. No.89 of 2012 is hereby set aside. 7. This petition is allowed and disposed of. 8. The learned Court will allow the petitioner to lead the evidence and the petitioner will not take unnecessary adjournments unless the cogent reason will be shown before the Court and further the learned Court will proceed in accordance with law. (Sanjay Kumar Dwivedi, J.) Sangam/