// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.908/2008 Tej Karan Jain S/o late Sh. Gokul Chand Jain Versus Sh. Roop Kishor Jain S/o late Sh. Gokul Chand Jain and Another Date of Order ::: 10.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Sudesh Bansal, Counsel for petitioner Shri O.P. Gupta, Counsel for respondents #### By the Court:- Admit. Heard learned counsel for the parties. The petitioner filed a suit for permanent injunction and possession in respect of disputed property against the defendant-respondents in the trial court. The written-statement was filed and thereafter issues were framed on 28th September, 2004 and case was fixed for plaintiff's evidence on 17th December, 2004. The case was adjourned from time to time for plaintiff's evidence. On 2nd August, 2006 the cross-examination of PW-1 Pushpa Devi was completed. A last opportunity was granted to the plaintiff-petitioner to lead his evidence and case was fixed on 29th September, 2006, but no witness was produced and examined, and again the // 2 // case was fixed for plaintiff's evidence on 22nd November, 2006. The plaintiff's witnesses were not present, therefore, the plaintiff's evidence was closed and the case was fixed on 15th January, 2007 for defendant's evidence. The plaintiff moved an application on that date itself stating therein that his witness Suresh is suffering from 'chikangunia', therefore, some time may be granted to examine him. The trial court rejected the application observing that no medical-certificate has been produced in support of the contention about illness of the witness. The case was fixed for defendant's evidence. The plaintiff again moved an application on 7th September, 2007 in the trial court to allow him to adduce his remaining evidence. The said application was contested by the defendants. The trial court rejected the said application vide order dated 14th November, 2007. The order dated 22nd November, 2006 closing the plaintiff's evidence and another order dated 14th November, 2007, whereby plaintiff's application for adducing remaining evidence was dismissed, have been challenged by the plaintiff in this writ petition. The learned counsel for the plaintiff- petitioner contended that on 22nd November, 2006 he could not produce and examine the witness as // 3 // the witness was suffering from 'chikangunia' and an application in writing in this regard was filed but the trial court, without granting any further opportunity to adduce his evidence and without granting any further opportunity to produce medical-certificate of the witness, rejected the said application by observing that the application is not supported by medical certificate and affidavit. He again moved another application on 7th September, 2007 but the same has also been rejected. He submits that he shall produce the remaining evidence on particular dates to be fixed by this court. He also contended that so far as delay of proceedings in the matter is concerned, he is ready to pay costs to compensate the defendants. The learned counsel for the respondents contested the matter and contended that the case was fixed for plaintiff's evidence on 17th December, 2004 and thereafter also the suit was fixed for plaintiff's evidence but he did not adduce his evidence and only on 2nd August, 2006 PW-1 Pushpa Devi was produced in the Court and she was cross-examined by the counsel for defendants. He further contended that the application filed by the plaintiff on 22nd November, 2006 was not supported by any medical certificate showing the disease suffered by the // 4 // witness and the same was rightly rejected by the learned trial court. Now the matter is going on for defendant's evidence and in the meanwhile the plaintiff again moved an application on 7th September, 2007 which has rightly been rejected by the trial court on 14th November, 2007, therefore, there is no merit in this writ petition and the same may be dismissed. I have considered the submissions of learned counsel for the parties and examined the impugned orders passed by the trial court and other documents annexed with the writ petition. It is correct that issues were framed in the case on 28th September, 2004 and the case was fixed for plaintiff's evidence on 17th December, 2004. Number of opportunities were granted to the plaintiff to adduce his evidence till 22nd November, 2006. The plaintiff did not examine his remaining witnesses, therefore, the learned trial court was fully justified in closing his evidence. In this view of the matter, the trial court was justified in rejecting the application dated 7th September, 2007 of the plaintiff vide order dated 14th November, 2007. Although it is not a matter where any leniency ought to have been shown to the plaintiff by giving him further opportunity to produce his witnesses, yet, in view of the // 5 // fact that the matter is still pending and fixed for defendant's evidence, I think that ends of justice would meet in case one more last opportunity is granted to the plaintiff to adduce his evidence on payment of costs. Consequently, the writ petition is allowed. The impugned orders passed by the trial court are set-aside. The plaintiff is permitted to examine his remaining witnesses on 5th and 6th of August, 2008 on payment of costs of Rs.3000/- (Rupees three thousand only). The amount of costs will be paid by the plaintiff to the defendants or their counsel on or before the plaintiff examines his witnesses. It is made clear that in case the amount of costs is not paid on or before 5th August, 2008 or the witnesses are not produced and examined by the plaintiff on the aforesaid dates, then it will be deemed that no further opportunity is granted to the plaintiff in this regard and the writ petition will be deemed to have been dismissed. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman//