IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.3393 of 2004. Tajammul Hussain son of late Shri Makbood Hussain. VERSUS Amtul Habeed Kajmi wife of Shri Suhail Ahmad Kajmi & Others Date Of Order ::: 26/03/2008. Hon'ble Mr. Narendra Kumar Jain J. Mr. Ajeet Bhandari, Counsel for the Petitioner Mr. M.M. Ranjan and Mr. Manish Sharma, Counsel for the Respondents BY THE COURT : Heard learned counsel for the parties. Plaintiff/respondents instituted a suit for partition against the defendants in the trial Court, which was fixed on 18.12.2002. PW-1 was present in the Court for his cross-examination, but the counsel for the defendants did not appear up-to 4.30PM. The trial Court took a view that on earlier occasions i.e. 17.10.2002 and 16.11.2002 also, the Counsel for the defendants was not present for cross-examination of PW-1, and in these circumstances the trial Court closed the right of the defendants to cross-examine PW-1. The evidence of plaintiff was closed and the case was fixed for defendant's evidence on 18.01.2003. The Counsel for the defendants filed an application before the trial Court on 12.09.2003 to allow him to cross-examine PW-2. The application was dismissed by the trial Court vide its order dated 22.04.2004 (annexure-4), which has been challenged by the defendants in the present writ petition. Learned counsel for the defendant/petitioner contended that the cross-examination of PW-1 was closed only on 18.12.2002, and without affording any further opportunity to the defendant to cross- examine PW-2, the trial Court wrongly closed the plaintiff's evidence on 18.12.2002. He, therefore, contended that he moved an application in the trial Court on 12.09.2003 to allow him to cross-examine PW-2 and the same was wrongly rejected by the trial Court. He, therefore, contended that the impugned order passed by the trial Court be set aside and the petitioner may be allowed an opportunity to cross-examine PW-2. Learned counsel for the plaintiff/respondents contended that the trial Court in its order dated 22.04.2004 (annexure-4) has observed that about 18-opportunities in six-years were granted to the defendant to cross-examine PW-2. The defendant, even did not pay the amount of costs, which was imposed on 02.09.1998 and further the amount of costs, which was imposed by rejecting the application of the defendants dated 12.09.2003. He, therefore, contended that the order passed by the trial Court is absolutely legal in the eye of law and no interference is called for in the same, and the writ petition deserves to be dismissed. I have considered the submissions of the learned counsel for the parties and examined the impugned order dated 22.04.2004 (annexure-4) and other annexed documents with the writ petition. The plaintiff/respondent filed a suit for partition way back in the year, 1992 and the case was fixed for chief examination of PW-2 on 07.10.1996 and since then 18-opportunities were granted to the defendant to cross-examine him. The time was granted to cross examine PW-2 on costs, but neither PW-2 was cross-examined nor the amount of costs was paid. PW-1 was present in the trial Court on 17.10.2002, 16.11.2002 and again on 18.12.2002. He was not cross examined by the Counsel for the defendant and the trial Court, ultimately closed the right of the defendant, to cross examine him on 18.12.2002 and fixed the case for defendant's evidence on 18.01.2003. The Counsel for the defendants did not move another application on that day also for cross examination of PW-2 nor any application was moved thereafter immediately, but only on 12.09.2003 an application was moved again to cross examine PW-2, which was rejected by the trial court on 22.04.2004. The order of the trial Court is well reasoned order and in my view it does not call for any interference. However, in view of the fact that while issuing notice of this writ petition to show cause to the respondents by this Court on 28.05.2004 the further proceedings of the trial Court were stayed and as per information furnished by the learned counsel for both the parties, the trial of the case could not proceed further, in view of the stay order passed by this Court, therefore, I think it fit and proper that the ends of justice will meet in case one more opportunity is afforded to the defendants to cross examine PW-2 on payment of costs. Consequently, the writ petition is allowed and the defendant/petitioner is allowed one more opportunity to cross-examine PW-2 Makbool Hussain. The plaintiff as well as defendant, both, will try to produce PW-2 Makbool Hussain for his cross-examination by the defendant/petitioner in the trial court on the next date. It will be open for both the parties to move an application to summon PW-2 Makbool Hussain, if he does not appear, as per request of both the parties. The expenses will be borne by the defendant/petitioner. Both the parties are directed to appear before the trial Court on 28th April, 2008. The defendant/petitioner will pay costs of Rs.5,000/- to the plaintiff/respondents before cross-examination of PW-2 Makbool Hussain. It is made clear that in case the amount of costs, as awarded is not paid before cross-examination of PW-2, then the trial Court will not allow the defendant to cross-examine PW-2 and the right of defendant will be deemed to have been closed. The suit was filed in the year, 1992, therefore, the trial Court is directed to conclude the trial, as soon as possible preferably within a period of nine-months from the date of cross-examination of PW-2 Makbool Hussain. There will be no order as to costs, so far as the writ petition is concerned. (Narendra Kumar Jain) J. a shok /