// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.14029/2008 {Sirajur-rahman Vs. Raju @ Rajendra and Others} Date of Order ::: 26.08.2009 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Sanjay Rahar, Counsel for petitioner Shri Manoj Kumar Gupta, Advocate, for Shri J.S. Chouhan, Counsel for respondents #### By the Court:- At request of learned counsel for both the parties, arguments were heard in the writ petition and the same is being disposed of finally. Plaintiff-petitioner preferred this writ petition challenging the impugned order dated 12th November, 2008 passed by Civil Judge (Junior Division), Atru, District Baran, whereby the plaintiff's evidence has been closed. Learned counsel for petitioner contended that affidavits of PW-1, PW-2 and PW-3 were filed on 26th August, 2008; thereafter the case was fixed on 20th September, 2008 and on that date, as per order of the High Court, Lok Adalat was conducted, therefore, case was fixed // 2 // for plaintiff's evidence on 12.11.2008. PW-1 and PW-2 both were cross-examined by the defendants; the plaintiff prayed for some more time to produce remaining evidence which was denied and the plaintiff's evidence was closed on that date; being aggrieved with the same, the present petition has been preferred by him. Learned counsel for petitioner contended that there was no delay on the part of the petitioner and in the interest of justice one last opportunity may be granted to him to produce remaining witness on payment of costs failing which the rights of the petitioner will be prejudiced. Learned counsel for respondents argued that various opportunities were granted to the petitioner to produce his remaining evidence but he failed to do so, therefore, the trial court was right in passing the impugned order. I have considered the submissions of learned counsel for the parties and examined the impugned order dated 12.11.2008 passed by the trial court. The petitioner has placed on record Annexure-1, the order-sheet dated 7th July, 2008, 26th August, 2008, 20th September, 2008 and 12th November, 2008. No reply to the writ petition or any other document on behalf of the respondents have been filed. From // 3 // Annexure-1 it appears that the plaintiff produced affidavits of PW-1 Sirajur-rahman, PW- 2 Bahadur Singh and PW-3 Surendra, on 26th August, 2008; thereafter the case was fixed on 12.11.2008; however, the file was taken up on 20th September, 2008 in Lok Adalat conducted as per direction of the Rajasthan High Court, but, on that date, the plaintiff was not present and the case was fixed on the date already fixed in the matter i.e. 12.11.2008, and, on that date, PW-1 and PW-2, both, were present and they were cross-examined by the defendants. From the order-sheets Annexure-1 it is clear that on 12.11.2008 two witnesses of the plaintiff were already present and they were cross-examined by the defendants, therefore, in the interest of justice one more opportunity ought to have been granted by the trial court to the plaintiff to produce his remaining witnesses, and, in not doing so, the trial court committed an illegality. So far as the delay on the part of the petitioner is concerned, the same could have been compensated by way of payment of costs. In these circumstances, I am of the view that the impugned order passed by the trial court cannot be allowed to stand and that interest of justice will meet in case the same is set-aside and the plaintiff is allowed one // 4 // more opportunity to lead evidence on one particular date on payment of costs. Consequently, the writ petition is allowed. The impugned order dated 12.11.2008 closing the plaintiff's evidence is set-aside and the plaintiff is permitted to lead his remaining evidence on 8th September, 2009, the date already fixed in the suit, on payment of costs of Rs.2,000/-, which will be paid on or before the next date fixed in the trial court with clear understanding that in case the amount of costs is not paid then plaintiff's witnesses will not be allowed to be examined in evidence. So far as the present writ petition is concerned, the parties are directed to bear their own costs. (Narendra Kumar Jain) J. //Jaiman//