// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.7544/2004 Prahlad Singh S/o Shri Bhag Singh and Another ...Petitioners Versus Nand Kishore Sharma S/o Pandit Ganga Sahai & Another ...Respondents Date of Order ::: 24.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Pankaj Gupta, Counsel for petitioners Shri Ajay Tantiya, Counsel for respondent No.1 #### By the Court:- Heard learned counsel for the parties. Plaintiff-petitioners filed a suit for specific performance of the contract in the trial court, wherein the plaintiffs' evidence was closed on 20th May, 2004 and the case was fixed for defendant's evidence on 15th July, 2004. The plaintiffs moved an application on 2nd June, 2004 itself stating therein that their evidence has been closed on 20th May, 2004 after recording the statements of Prahlad Singh and Puran Saini, but they also wanted to examine Virender Badhwar, Notary Public, and Prahlad Singh, Stamp Vendor, who are material and relevant witnesses in the present case, therefore, they may be permitted to examine them. The application was opposed by the defendant and it was contended on his behalf that on 21st April, 2004 it was observed by the // 2 // trial court that five opportunities have already been granted to the plaintiffs to adduce their evidence but they produced the affidavits of Puran Saini and Prahlad Singh only. These witnesses were also not present for cross-examination, therefore, it was directed that a last opportunity is further granted to adduce evidence otherwise evidence will be closed. On 20.05.2004, the evidence of Puran Saini and Prahlad was taken and, as directed earlier, the plaintiff's evidence was closed. The learned trial court, after considering the submissions of learned counsel for both the parties, dismissed the application of the plaintiffs vide impugned order dated 9th September, 2004. The plaintiffs, therefore, preferred this writ petition challenging the orders dated 20.05.2004 and 09.09.2004 closing their evidence and rejecting their application to reopen their evidence and for examination of Virendra Badhwar, Notary, and Prahlad Singh, Stamp Vendor, as plaintiffs' witnesses. The learned counsel for the petitioners contended that it was a suit for specific performance of the contract wherein examination of Notary Public and Stamp Vendor relating to disputed agreement was necessary but their evidence was wrongly closed on 20th May, 2004. It was further contended that there was no delay on the part of the petitioners as the evidence was closed on 20th May, 2004 and case was fixed for defendant's evidence on 15th July, 2004, but, without waiting for next date, an application was moved on their behalf on 2nd June, 2004 itself which should have been allowed by the trial court. // 3 // The learned counsel for the defendant contended that from the order-sheet dated 21st April, 2004 it is clear that five opportunities had already been granted earlier to the plaintiffs and last opportunity was given to the plaintiffs for examination of their witnesses. On 20th May, 2004 the cross-examination of PW-1 Prahlad Singh and PW-2 Puran Saini was complete and it was plaintiffs' counsel, who closed their evidence, therefore, the learned trial court was right in rejecting the application and no interference should be made in the said order by this Court. I have considered the submissions of learned counsel for both the parties in the light of impugned orders passed by the trial court dated 20th May, 2004 as well as 9th September, 2004. The plaintiffs filed a suit for specific performance of contract and plaintiffs wanted to examine Virendra Badhwar, Notary Public, and Prahlad Singh, Stamp Vendor, in support of their case. Looking to the nature of controversy, I find that the statement of both the witnesses was necessary. So far as the impugned order passed by the trial court is concerned, I find that the trial court had already granted sufficient opportunities to the petitioners and no illegality has been committed by it in rejecting their application but looking to all the facts and circumstances of the case and the nature of controversy involved in the present matter, I think it fit and proper that ends of justice will meet in case one more opportunity is granted to the plaintiffs to adduce their both witnesses, namely, Virender Badhwar, Notary Public, and Prahlad Singh, Stamp Vendor, at their own, without moving any // 4 // further application before the trial court to summon them and the defendant can be compensated by way of costs. Consequently, the writ petition is allowed. The plaintiff- petitioners are allowed to examine their both witnesses, namely, Virender Badhwar, Notary Public, and Prahlad Singh, Stamp Vendor, in the trial court on 17th April, 2008 on payment of costs of Rs.3000/- (Rupees three thousand only), which will be paid by the plaintiffs to defendant before examining the said witnesses in the trial court. It is made clear that in case the above two witnesses are not examined by the plaintiffs at their own on the next date so fixed or payment of costs is not made before examining the above witnesses, then the plaintiffs will not be entitled to examine both the witnesses again and the plaintiffs' evidence will be deemed to have been closed and the impugned orders have been upheld by this Court. Both the parties are directed to appear before the trial court on 17th April, 2008. There will be no order as to costs so far as this writ petition is concerned. (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.6486/2004 In S.B. Civil Writ Petition No.7544/2004 Prahlad Singh S/o Bhag Singh and Another ...Petitioners Versus Nand Kishore Sharma S/o Pandit Ganga Sahai & Another ...Respondents Date of Order ::: 24.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Pankaj Gupta, Counsel for petitioners Shri Ajay Tantiya, Counsel for respondent No.1 #### By the Court:- In view of the order passed in the main petition, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//