1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.5839/2007 (Babbu Versus Jagdish & Others) Date of Order :: 31st August, 2009 PRESENT HON'BLE SHRI JUSTICE NARENDRA KUMAR JAIN Shri S.R. Yadav, Counsel for the petitioner(s) Shri G.P. Kaushik) Counsel for the respondents Shri Rupin Kala ) BY THE COURT: At the request of learned counsel for the parties, the arguments were heard and writ petition is being disposed of finally. The plaintiff/respondent no.1 filed a suit for permanent injunction against the defendant-petitioner and other defendants in the trial court, wherein plaintiff's evidence was closed on 4th April, 2006. Thereafter case was fixed for defendants' evidence. The defendant no.1/petitioner filed his affidavit on 24th March, 2007. Two affidavits of his witnesses namely Bhonri Lal and Vishram were filed on 5th April, 2007. The trial court vide its impugned order dated 10th May, 2007 took on record the affidavit of defendant Babbu, but refused to take on record the affidavits of his witnesses namely Bhonri Lal and Vishram on the 2 ground that they have not been filed within time. Being aggrieved with the same, the defendant no.1/petitioner has preferred this writ petition. While issuing notice to show cause, this Court vide its order dated 6th August, 2007 passed interim stay order that trial court will proceed further in the suit, but shall not pass final order. The learned counsel for the petitioner contended that matter was fixed for defendant's evidence and the same was not closed, therefore, there was no delay on the part of the defendant to place on record the affidavits of Bhonri Lal and Vishram and the same ought to have been taken on record, therefore, the impugned order be set-aside. The learned counsel for the respondents defended the impugned order contending that there was no relevancy of affidavits of Bhonri Lal and Vishram, therefore, their affidavits were not rightly taken on record. I have considered the submissions of learned counsel for the parties. The affidavit of defendant was filed on 24th March, 2007 and its witnesses affidavits were filed on 5th 3 April, 2007. The matter was fixed for defendant's evidence and defendant's evidence was not closed. The trial court has not rejected the affidavit of witnesses on the ground that they are not relevant witnesses, but they are rejected only on the ground of delay. The matter has not been finalized by the trial court so far in view of the interim order passed by this Court dated 6th August, 2007. After considering all the facts and circumstances of the case, I find that trial court committed an illegality in not taking the affidavits of these witnesses on record and in these circumstances the impugned order is liable to be set-aside. In view of above discussions, the writ petition is allowed. The impugned order dated 10th May, 2007 is set-aside and trial court is directed to take on record the affidavits of Bhonri Lal and Vishram. The defendant is directed to produce both the witnesses in the trial court at his own for cross-examination of the plaintiff on 29th September, 2009 with the clear understanding that in case these witnesses are not produced on that day, then their affidavits will not be treated as part of the record. 4 The parties are directed to bear their own costs. (NARENDRA KUMAR JAIN),J. DK/