// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.7392/2004 Mala Ram S/o Rugha and Others Versus The Additional District Judge, Neem-Ka-Thana, District Sikar and Others Date of Order ::: 15.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Dharamveer Tholia, Counsel for petitioners Shri Rahul Tewari, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. The plaintiff-petitioners instituted a suit for cancellation of sale-deed and permanent injunction in respect of disputed property in the trial court wherein the trial court closed the plaintiff's evidence vide order dated 21st May, 2004. The said order has been challenged by the petitioners in this writ petition. This court, while issuing notice to show-cause to the respondents on 27th October, 2004, stayed the further proceedings of the trial court. The learned counsel for the petitioners contended that the trial court wrongly closed the evidence of the plaintiffs on 21st May, 2004 as on that date he had examined PW-2 Chhaju Ram and made a prayer for further time to examine other witnesses but the trial court, without considering his request, closed the evidence. The plaintiffs thereafter moved an application for // 2 // allowing them to lead evidence on 6th July, 2004 but the said application was also dismissed vide order dated 31st August, 2004. He contended that on 05.09.2003, 10.10.2003, 08.12.2003, 27.01.2004, 26.03.2004 and 23.04.2004 the case was fixed for plaintiff's evidence but the evidence could not be produced as the Presiding Officer was on leave. Thereafter the case was fixed on 21st May, 2004 and on that date the statement of PW-2 Chhaju Ram was recorded, therefore, there was no delay on the part of the plaintiffs. He contended that looking to the facts and circumstances of the present case and the controversy involved in the present suit, it is necessary to examine some more witnesses otherwise the plaintiffs will suffer irreparable loss. He also contended that the plaintiffs themselves will examine the witnesses in the trial court on one particular date to be fixed by this Court and so far as the delay of proceedings is concerned the defendants can be compensated by way of costs. The learned counsel for the respondents defended the impugned orders. I have considered the submissions of learned counsel for both the parties and examined the impugned orders passed by the courts below, which have been annexed with the writ petition. The copies of the order-sheets of the trial court from 5th September, 2003 to 23rd April, 2004 have been placed on the record and it reveals that the Presiding Officer was on leave on the aforesaid dates as contended by the learned counsel for the petitioners. On 21st May, 2004 the statement of PW-2 Chhaju Ram was recorded. In these circumstances, I find that the trial court // 3 // committed an illegality in not granting one more opportunity to the plaintiffs to lead their evidence. So far as delay of proceedings is concerned, the defendants could have been compensated by way of costs. Consequently, the writ petition is allowed. The plaintiff- petitioners are permitted to lead their evidence by examining witnesses before the trial court at their own on 12th and 13th of May, 2008 on payment of costs of Rs.3000/- (Rupees three thousand only), which will be paid by the plaintiffs to the defendants on or before examining their witnesses. It is made clear that in case the plaintiffs do not examine any witness on the aforesaid dates or fail to pay the costs then the evidence of the plaintiffs will be deemed to have been closed and no further opportunity will be granted in this regard. Costs is made easy. (Narendra Kumar Jain) J. //Jaiman// // 4 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.6357/2004 In S.B. Civil Writ Petition No.7392/2004 Mala Ram S/o Rugha and Others Versus The Additional District Judge, Neem-Ka-Thana, District Sikar and Others Date of Order ::: 15.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Dharamveer Tholia, Counsel for petitioners Shri Rahul Tewari, Counsel for respondents #### By the Court:- In view of the order passed in the main writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//