// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.853/2004 Mohammed Ramjan S/o Mohammed Hussain Versus The Addl. Civil Judge (JD) No.5, Jaipur City, Jaipur & Others Date of Order ::: 30.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Mathur, Counsel for petitioner None present for respondents #### By the Court:- Defendant-petitioner has preferred this writ petition challenging the order dated 11.11.2003 passed by the Additional Civil Judge (Junior Division) No.5, Jaipur City, Jaipur, in Civil Suit No.347/2003, whereby an application dated 2nd April, 2002 of defendant-petitioner to allow him to cross-examine PW-1 Abdul Khalid, has been dismissed. Plaintiff-respondents filed a suit for eviction wherein statement of PW-1 Abdul Khalid was recorded and case was fixed for cross-examination of PW-1 Abdul Khalid on 4th May, 1999. The counsel for the defendant was not present, therefore, the trial court closed the cross-examination of PW-1 Abdul Khalid. The defendant moved an application in the trial court to allow him to cross-examine PW-1 Abdul Khalid but the said application was dismissed vide order dated 11th November, 2003. The learned counsel for the petitioner contended that after close of opportunity of cross-examination of PW-1 Abdul // 2 // Khalid on 4th May, 1999, the defendant had changed his counsel on 12th July, 1999, who could not come to know that PW-1 Abdul Khalid has not been cross-examined by the earlier counsel for the defendant and when the plaintiff's evidence was closed and case was fixed for defendant's evidence the said fact came to his knowledge and immediately thereafter he moved the application, which should have been allowed in the interest of justice. He further contended that although delay has occurred on account of defendant in the case but the same could not be a ground for rejection of his application thereby denying him of his valuable right of cross-examination of PW-1 Abdul Khalid and the delay of proceedings could have been compensated by way of costs to the plaintiff. A notice to show cause was given to the respondents by this Court on 2nd August, 2004 but no one is present on behalf of the respondents. On asking to Shri R.K. Mathur, learned counsel for the petitioner, about the present position of the Civil Suit in the lower court, he, on the instructions of his client, informed the court that the suit is still pending. The learned trial court, in its order, observed that after close of opportunity of cross-examination on 4th May, 1999, the statements of PW-2 to PW-5 were recorded during the period from 21st August, 1999 to 30th January, 2002 and these witnesses were cross-examined by the defendant, therefore, it cannot be presumed that the counsel for the defendant was not aware that PW-1 has not been cross-examined in the case. // 3 // After considering the submissions of learned counsel for the petitioner in the light of the reasons assigned by the trial court for rejecting the application of the defendant, I find that on 4th May, 1999 the earlier counsel for the defendant was not present and, in his absence, the right of the defendant to cross-examine PW-1 Abdul Khalid was closed and thereafter the defendant changed his counsel on 12th July, 1999. It appears that it may be a bona-fide mistake on the part of the counsel for the defendant that he might not have gone through the entire record of the case including the fact that PW-1 Abdul Khalid has not been cross- examined and he cross-examined the plaintiff's other witnesses No.2 to 5. After considering all the facts and circumstances of the case, I think it fit and proper in the facts and circumstances of the case, particularly when the suit is pending in the trial court as stated by the learned counsel for the petitioner, that ends of justice will meet in allowing the defendant to cross-examine PW-1 Abdul Khalid on payment of costs. Consequently, the writ petition is allowed. The plaintiff will produce PW-1 Abdul Khalid for his cross-examination by the counsel for the defendant in the trial court or the trial court will issue necessary summon calling PW-1 Abdul Khalid for his cross- examination by the counsel for the defendant in the trial court on 16th July, 2008. The necessary steps in this regard by the trial court will be taken only after deposit of the amount of costs of Rs.2,000/- by the defendant in the trial court. In case PW-1 Abdul Khalid remains present in the court and the counsel for the // 4 // defendant does not cross-examine him on the said date or the defendant fails to pay the amount of costs, as directed above, then the defendant will have no right to cross-examine PW-1 Abdul Khalid and the said right will be deemed to have been closed. A copy of this order may be sent to the trial court. 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.764/2004 In S.B. Civil Writ Petition No.853/2004 Mohammed Ramjan S/o Mohammed Hussain Versus The Addl. Civil Judge (JD) No.5, Jaipur City, Jaipur & Others Date of Order ::: 30.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Mathur, Counsel for petitioner None present 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//