// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4765/2004 Mst. Sono Wd/o Karan and Another Versus Nagar Palika Bhusawar through Executive Officer and Another Date of Order ::: 26.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Karanpal Singh, Counsel for petitioners Shri P.N. Paliwal, Advocate, for Shri Brij Kishore Sharma, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. Plaintiff-petitioners filed a suit for permanent injunction in the trial court, wherein the issues were framed on 7th October, 1997, and thereafter the case was fixed from time to time on about 35 dates for plaintiff's evidence. The plaintiff's evidence was closed on 8th September, 2003. The defendant's evidence was also recorded and case was fixed for final arguments. The plaintiffs filed an application under Order 16 Rule 14, Order 18 Rule 22 and Section 151 CPC, in the trial court on 23rd April, 2004, to afford them an opportunity to examine two important witnesses, namely, Ramanlal and Devendra Sharan Pathak, contending therein that when new Advocate was engaged in the case on their behalf then he inspected the file and came to know that two important witnesses were necessary to be examined on behalf of the plaintiffs in the case but the same were // 2 // not examined and the evidence was closed, therefore, in the interest of justice, the plaintiffs may be allowed to examine two witnesses on their behalf in the case. The learned trial court, vide its order dated 17th May, 2004, impugned in this writ petition, dismissed the application by observing that the case remained pending for plaintiff's evidence on about 35 dates and it was the learned counsel for the plaintiffs who himself got the plaintiff's evidence closed. The learned counsel for the petitioners contended that earlier there was another counsel appearing on behalf of the plaintiffs and, on engagement of new Advocate on their behalf and on inspection of the file by him, he came to know that two witnesses are necessary to be examined in the case on behalf of the plaintiffs, who were not got examined by the earlier counsel, therefore, the application was moved in the trial court but the same has wrongly been rejected by the trial court only on the ground that it was the counsel for the plaintiffs, who himself got the evidence closed. He contended that if examination of witnesses is necessary then in the interest of justice the same should have been allowed, therefore, the order passed by the trial court be set-aside and the plaintiffs be permitted to examine aforementioned two witnesses. This Court, while issuing notice to show cause to the respondents on 23rd July, 2004 also passed an interim stay order that the trial court will not pass the final order in the case, therefore, the case is still pending in the trial court. The learned counsel for the respondents defended the // 3 // impugned order and prayed for dismissal of the writ petition. I have considered the submissions of learned counsel for the petitioners in the light of reasons assigned by the trial court for rejection of the application of the plaintiff-petitioners under Order 16 Rule 14, Order 18 Rule 22 and Section 151 of the CPC, and, after considering the same, I find that although the trial court was justified in rejecting the application of the plaintiff by observing that the case remained pending for about 35 dates and it was the counsel for the plaintiffs, on whose prayer, the evidence was closed, but the trial court has not considered another aspect of the matter that two important witnesses were to be examined in the case on behalf of the plaintiffs and if, in the opinion of the plaintiffs, the examination of two more witnesses was necessary then the said request ought to have been considered and, in the interest of justice, the same should have been allowed. In these circumstances, I think it fit and proper that ends of justice will meet in case the application filed by the petitioners is allowed on payment of costs as the delay has occasioned in the case on their part, and the plaintiffs are permitted to get examined two witnesses, namely, Ramanlal and Devendra Sharan Pathak at their own, on the date to be fixed by this Court. Consequently, the writ petition is allowed. The impugned order dated 16th May, 2004, passed by the trial court is set-aside. The plaintiff-petitioners are allowed to get examined their two witnesses, namely, Ramanlal and Devendra Sharan Pathak at their own, in the trial court on 8th and 9th of July, 2008, on payment of costs of Rs.3,000/- (Rupees three thousand only), which will be // 4 // paid by the plaintiffs to the defendants before examination of the aforementioned witnesses on the dates, indicated above, failing which the writ petition will be deemed to have been dismissed and the plaintiffs will not be entitled to get examined the aforementioned witnesses, as directed above. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.4045/2004 In S.B. Civil Writ Petition No.4765/2004 Mst. Sono Wd/o Karan and Another Versus Nagar Palika Bhusawar through Executive Officer and Another Date of Order ::: 26.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Karanpal Singh, Counsel for petitioners Shri P.N. Paliwal, Advocate, for Shri Brij Kishore Sharma, Counsel for respondents #### By the Court:- In view of the order passed in the writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//