R.S. Chauhan, J.

1. Aggrieved by the order dated 15-2-2010, passed by Additional Civil Judge (Jr. Dn.) & Judicial Magistrate First Class, No. 1, Jaipur City Jaipur in Civil Suit No. 234/2009, whereby the learned Magistrate has refused to re-open the evidence of petitioner-plaintiff, the petitioner has challenged the same before this Court.

2. According to the petitioner-plaintiff, he filed an affidavit on 22-9-2009. After filing of the affidavit due to his illness, the plaintiff could not attend the trial court on 27-11-2009. Thus, the case was adjourned to 6-1-2010. However, on 6-1-2010 also due to some personal work again the plaintiff could not remain present in the court. Although the time was sought on behalf of the plaintiff, but the learned Magistrate closed the evidence of plaintiff. Subsequently, the plaintiff moved an application for re-opening of his evidence. However, vide order dated 15-2-2010 the said application was dismissed. Hence, this writ petition.

3. Mr. O.P. Mishra, the learned Counsel for the petitioner, has contended that since it is a settled principle that justice should not only be done, but it should appear to have been done. Therefore, ample opportunity should be given to the petitioner to establish his case. It is not the case that the plaintiff has been absenting himself from the court by choice, but he has been unable to attend the court due to personal necessity. Therefore, the court should have been generous enough to permit the plaintiff to substantiate his case.

4. On the other hand, Mr. Khandal, the learned Counsel for the respondent, has contended that a bare perusal of the order dated 15-2-2010 clearly reveals that the plaintiff has been unable to submit his evidence on more than three occasions. Therefore, the learned Magistrate was justified in passing the impugned order.

5. Heard learned Counsel for the parties, and perused the material available on record.

6. Since it is settled position of law that justice should not only be done, but it should appear to have been done, since the plaintiff does have a right to establish his/ her case, the court should have been kind enough to permit his to submit his evidence. Order 17 Rule 2 of Civil Procedure Code empowers the Court to impose a cost, in case the court is of the opinion that too many adjournments have been asked. Order 17 Rule 2 CPC balances the conflicting interests where a party is seeking adjournments and the other party is suffering due to the adjournments. Learned Magistrate should have exercised this power which was vested in him.

7. Therefore, this Court sets aside the order dated 15-2-2010, and gives a last opportunity to the plaintiff to submit his evidence. The trial court is directed to re-open the evidence of plaintiff provided the plaintiff pays a cost of Rs. 1000/-. The evidence of the plaintiff be recorded on April 29, 2010. Since the plaintiff is being permitted to submit his evidence, therefore the respondent also shall have the right to submit his evidence.

8. The writ petition stands allowed, as indicated above.