// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2680/2008 Smt. Shashi Barry W/o Jagat Mohan Barry Versus Shri Ashok Kumar Jain S/o Shri Gappu Chand Ji Date of Order ::: 04.09.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Ms. Anupama Parashar, Counsel for petitioner Shri D.D. Patodia, Counsel for respondent #### By the Court:- Admit. Shri D.D. Patodia, Advocate, appears for the sole respondent. Heard learned counsel for the parties. The applicant-landlord-respondent filed an application for eviction in the trial court against non-applicant-petitioner, wherein compromise talks were going on. The matter was fixed on 19th September, 2007 and on that date it was stated by both the parties that compromise is not possible in the matter. The order-sheet dated 19.09.2007 further shows that both the parties stated that they do not want to file any application for cross-examination of the witnesses, therefore, the case was fixed for final hearing. // 2 // The learned counsel for the non- applicant-petitioner filed an application stating therein that on 19th September, 2007 the non-applicant could not come to know that the case has been fixed for final arguments, whereas it should have been fixed for cross- examination of the applicant's witness; cross- examination of the applicant's witness was necessary in the facts and circumstances of the present case. The trial court rejected the application vide order dated 12th February, 2008. Being aggrieved with the same, the present writ petition has been preferred on behalf of the non-applicant. The learned counsel for the petitioner contended that the trial court committed an illegality in passing the order dated 19th September, 2007 as well as 12th February, 2008. It is contended that compromise in the case was possible but ultimately no compromise took place and the same was stated before the trial court on 19th September, 2007. The counsel for the non-applicant-petitioner remained under the impression that the case will now be fixed for cross-examination of applicant's witness but without knowledge to the non-applicant the order-sheet dated 19.09.2007 has been written that both the parties do not want to file any // 3 // application for cross-examination of the witnesses. Thereafter an application was moved to allow the non-applicant to cross-examine the applicant's witnesses but the trial court rejected the application vide order dated 12th February, 2008, which is per-se illegal and the same is liable to be set-aside. The learned counsel for the respondent contended that the order-sheet dated 19th September, 2007 of the trial court is absolutely correct as on that date both the parties contended that they do not want to file any application for cross-examination of the witnesses. He further contended that the application for eviction was filed on the ground of default and non-applicant, in her written-statement, admitted the default and contended that she is ready to pay arrears of rent, if any, therefore, there was no occasion for cross-examination of the applicant's witnesses in the case. I have considered the submissions of learned counsel for the parties and examined the impugned orders passed by the court below in the light of their submissions. It is correct that in the order-sheet dated 19th September, 2007 it is mentioned that both the parties do not want to file any // 4 // application for cross-examination of the witnesses. There is no reason for not believing the order-sheet dated 19th September, 2007. However, it appears that subsequently an application was moved by the non-applicant to allow her to cross-examine the applicant's witness. The trial court rejected the said application. When the application was filed by the non-applicant then an opportunity should have been granted to her particularly when she mentioned a fact that she remained under the impression that on 19th September, 2007 the matter has been fixed for cross-examination of the applicant's witness. A right of cross- examination of witness is a valuable right of a party, therefore, the same should not be denied normally. After considering all the facts and circumstances of the case, I am of the view that one opportunity may be granted to the non- applicant to cross-examine the applicant's witness on the next to be fixed by this Court. The learned counsel for the respondent assures that he will produce the applicant for cross- examination by the non-applicant on 29th September, 2008. In case the applicant remains present then he will be cross-examined by the non-applicant. // 5 // In the result the writ petition is allowed. The orders dated 19.09.2007 and 12.02.2008 are set-aside. The non-applicant- petitioner is permitted to cross-examine the applicant's witness on 29th September, 2008. It is made clear that in case the non- applicant does not cross-examine the applicant on that date then no further opportunity shall be granted to her for this purpose by the trial court. The applicant will also be at liberty to cross-examine the non-applicant or her witnesses. The costs is made easy. (Narendra Kumar Jain) J. //Jaiman//