1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil First Appeal No.805/2007 (Smt. Nidhi Gupta & Others Versus Namokar Enterprises Pvt. Ltd.) Date of Judgment :: 18th March, 2009 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. J.K. Singhi for the appellants Mr. Sudhanshu Kasliwal for the respondent Admit. 2. At the request of learned counsel for both the parties, the final arguments were heard in the appeal and the same is being disposed of. 3. The plaintiff-appellants have preferred this regular first appeal under Section 96 CPC against the judgment and decree dated 11th September, 2002 passed by the Additional District Jude No. 9, Jaipur City, Jaipur in Civil Suit No. 106/2001, whereby the plaintiffs' suit for specific performance and injunction has been dismissed. 4. The learned counsel for the appellants contended that the impugned order dated 11th September, 2002 passed by the trial court will show that suit has been dismissed in absence of evidence, whereas statement of PW-1 was recorded and it was the duty of the trial court 2 to discuss at-least the statement of PW-1 while deciding the suit, therefore, the order passed by the trial court is perverse. He further contended that although number of opportunities were granted to the plaintiffs to lead remaining evidence, but instead of granting one more opportunity on 11th September, 2002, the plaintiffs' evidence was closed and for want of plaintiffs' evidence, the suit was dismissed, therefore, one more opportunity may be granted to the plaintiffs to lead their evidence on payment of cost. 5. The learned counsel for the respondent contended that the case was fixed for plaintiffs' evidence on 37 occasions and on most of the dates, the case was adjourned on the request of plaintiffs' counsel. The plaintiffs examined only one witness and in these circumstances, the trial court committed no error in dismissing the plaintiffs' suit. However, the learned counsel for the respondent fairly and frankly conceded that one more opportunity may be afforded to the plaintiffs to examine their all witnesses on a particular date on payment of cost. 6. I have considered the submissions of learned counsel for both the parties and 3 examined the impugned order in the light of their submissions. 7. The learned counsel for both the parties do not dispute that case was fixed for plaintiffs' evidence on 37 occasions and on most of the dates, the case was adjourned on the request of the plaintiffs and only one witness was examined as PW-1. From the order passed by the trial court, it appears that trial court has not even discussed the statement of PW-1, whereas even as per the submission of learned counsel for the respondent, one witness was examined on behalf of the plaintiff. In these circumstances, I find that there is complete non-application of the mind on the part of the trial court in not discussing the statement of PW-1 and to record in the order that evidence is closed and in absence of plaintiffs' evidence, the suit is dismissed. In these circumstances, I find that the order passed by the trial court is absolutely illegal and perverse and the same cannot be allowed to be sustained. So far as grant of one more opportunity to plaintiffs to lead their remaining evidence is concerned, the prayer does not appear to be reasonable but in the interest of justice, I think it fit and 4 proper that one more opportunity may be granted to the plaintiffs to lead their remaining witnesses on a particular date on payment of cost. 8. Consequently, the appeal is allowed. The impugned judgment dated 11th September, 2002 passed by the trial court is set-aside. The case is remanded back to the said court for proceeding further in the suit. The trial court is directed to record statement of all witnesses of the plaintiffs on 1st and 2nd May, 2009, on payment of cost of Rs. 5,000/- (Rs. Five Thousand only). It is made clear that no further opportunity will be granted to the plaintiffs in this regard. It is also made clear that in case the plaintiffs fail to make the payment of cost or to examine any witnesses on their behalf, no further opportunity in this regard will be granted and trial court will proceed further with the suit in accordance with the law. So far as this appeal is concerned, the cost is made easy. 9. Both the parties are directed to appear before the trial court on 20th April, 2009. The registry is directed to send back the record of the trial court immediately. (NARENDRA KUMAR JAIN),J. 5