1 S.B.CIVIL WRIT PETITION NO.5768/2005 (Sukh Raj & anr. Vs. Bhikam Chand & anr.) Date of Order :: 28th April 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.S.P.Bhati for the petitioners Mr.Sandeep Shah for the respondent No.1. .... Service on the proforma respondent No.2, the court concerned, is dispensed with. This writ petition has been filed against the order dated 22.07.2005 passed by the Civil Judge (Junior Division), Sumerpur whereby evidence of the defendants-petitioners has been closed. The petition was admitted for consideration on 26.09.2005 and further proceedings in Civil Suit No.23/1998 were ordered to remain stayed. Learned counsel Mr.Shah appears for the plaintiff- respondent No.1 and in all fairness submits that the plaintiff- respondent does not intend to make submissions in support of the order impugned and shall have no objection if an opportunity of leading evidence is extended to the petitioner. In view of the submissions so made and looking to the facts and circumstances of the case, at the request and with the consent of learned counsel for the parties, the matter is taken up for final disposal at this stage itself. 2 Having perused the order-sheets as drawn by the learned Trial Court (placed on record as Annexure-4 & 5), this Court is constrained to express its disapproval on the approach of the learned Trial Court particularly as noticed from the order-sheets dated 18.05.2005 and 22.07.2005. On 18.05.2005 adjournment was sought on behalf of the defendants with the submissions that the defendant No.1 was suffering from cardiac problems and certificate from the Hospital concerned was placed on record stating that defendant was admitted with acute heart attack on 11.05.2005. For such adverse circumstances stated, an opportunity for leading evidence could have been granted without imposing any costs; and there appears little justification in the order imposing costs. The learned Trial Court thereafter on 22.07.2005 has proceeded to close down the evidence on the observation that if defendant No.1 was unable to attend, the defendant No.2 Dilip Kumar could have been produced in evidence and a commission could have been got issued for the statement of defendant No.1. The approach definitely falls short of a reasonable one particularly when it is noticed that even on 10.07.2005 the doctor has referred to cardiac problems of the defendant No.1; and the defendant No.2 is son of the 3 defendant No.1. In the overall facts and circumstances of the case and looking to the adverse physical condition of defendant No.1, it does not appear that the petitioners were intentionally avoiding to lead evidence; and looking to the subject matter of litigation, an opportunity could have been extended to the defendants to lead evidence without causing any prejudice to the plaintiff. Learned counsel appearing for the plaintiff has rightly not attempted to justify the order impugned and has rightly conceded that an opportunity may be extended to the defendants. Consequently, this writ petition is allowed; and the impugned order dated 22.07.2005 is set aside. The learned Trial Court shall fix the matter for defendants' evidence and proceed further in accordance with law. No costs. (DINESH MAHESHWARI),J. MK