// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.8487/2007 Moti Lal S/o Shri Budh Ram Versus Smt. Rampyari W/o Shri Pyare Lal Date of Order ::: 27.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Jinesh Jain, Counsel for petitioner Shri Devendra Raghav, Counsel for respondent #### By the Court:- Admit. Shri Devendra Raghav, Advocate, appears for the respondent. Heard learned counsel for the parties. The plaintiff-respondent filed a suit in the trial court, which was fixed for defendant's evidence on 1st October, 2007 and on that date the defendant examined DW-2 and moved an application to produce one more witness Rahim Khan, whose affidavit had already been placed on the record, for cross-examination. It was mentioned in the application that the said witness could not come due to his illness, therefore, one opportunity may be granted. The trial court rejected the application on the ground that on earlier occasion last // 2 // opportunity was granted to the defendant to produce its evidence therefore no further opportunity can be granted. The defendant filed another application on that date itself for producing two documents i.e. agreement dated 26th December, 1990 and the sale-deed dated 29th September, 1993 on the record. The trial court rejected the said application also on the ground that these are old documents and no reasonable explanation has been given for not producing the same along- with the written statement. Being aggrieved with the same, the defendant-petitioner has preferred this writ petition. The learned counsel for the petitioner contended that the trial court committed an illegality in dismissing both the application. So far as application to produce Rahim Khan witness for cross-examination is concerned, it was specifically mentioned in the application that he could not come due to his illness, therefore, the application should have been allowed. So far as another application for taking the documents on the record is concerned, he contended that the aforesaid documents were produced in another case and he moved an application to return the original documents to produce the same in the present // 3 // case, therefore, the time be granted for the said purpose. He further contended that both the documents are relevant and material for the purpose of proper adjudication of the case. The learned counsel for the respondents defended the impugned order and contended that from the order-sheet of the trial court it is clear that number of opportunities were granted to the defendant to adduce his all evidence. So far as production of documents is concerned, he contended that these documents relate to the years 1990 and 1993, therefore, the same were in their knowledge and the defendant remained negligent in not producing the same, therefore, no further opportunity is required to be given to him for the said purpose. I have considered the submissions of the learned counsel for the parties and examined the impugned order in the light of their submissions. DW-2 Dalla was examined by the defendant on 1st October, 2007. Defendant's third witness Rahim Khan was not present and an application in writing was filed on his behalf. The trial court has not rejected the application on the ground that no medical certificate of the witness has been produced nor the said fact has been disbelieved but it has been rejected on // 4 // the ground that on earlier occasion it was specifically mentioned that in case he will not adduce the complete evidence then his evidence will be closed. I find that the order passed by the trial court does not appear to be correct. There was an application in writing to produce Rahim Khan on the next date as he could not come due to his illness so one more opportunity ought to have been granted to the defendant for the said purpose. Therefore, I am of the view that the defendant is entitled for one more opportunity to produce Rahim Khan within particular time to be fixed by this Court. So far as another application to produce documents on the record is concerned, it is correct that the documents relate to the year 1990 and 1993, therefore, they were in the knowledge of the defendant and no reasonable explanation has been given by him for not producing the same along-with written-statement or at the early stage thereafter. However, the trial court has not rejected the application on the ground that these documents are not material or relevant for the proper adjudication of the case. Although the proceedings have been delayed on account of inaction on the part of the defendant but for the same the opposite party can be compensated // 5 // by awarding costs. In view of the above, the writ petition is allowed. The impugned order dated 1st October, 2007 passed by the trial court is set- aside and both the applications filed by the defendant-petitioner are allowed on payment of costs of Rs.3,000/-. The defendant will produce his witness Rahim Khan for cross-examination within a period of one month. The documents annexed with the application will also be taken on the record. The defendant will pay the amount of costs to the plaintiff before or at the time of examining his witness Rahim Khan or at the time of taking his documents on the record by the trial court, failing which neither the defendant' witness will be allowed to be examined nor the said documents will be taken on the record. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman//