1 S.B. CIVIL WRIT PETITION NO.7491/2007 81 (Poonam Chand Vs. Mohan Lal & Ors.) Date of Order :: 28th January 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.B.N.Kalla for the petitioner Mr.Rakesh Arora for the respondent By way of this petition, the petitioner has questioned the order dated 06.10.2007 (Annex.4) passed by the learned trial court refusing his application for allowing an opportunity for leading evidence. From the perusal of the material placed on record it does appear that the plaintiff-petitioner had been granted sufficient opportunities including the one on costs too, yet he failed to examine any other witness except himself and the trial court proceeded to close his evidence on 18.07.2007. However, before the statements of the witnesses of the defendants were recorded in the court, particularly by way of their cross-examination, the plaintiff moved an application with the submissions that for the demise of his sister-in-law, he could not produce the witnesses and sought an opportunity. The learned trial court has refused such application with reference to the opportunities previously granted and has placed the matter for defendants' evidence. 2 It is noticed that the plaintiff has filed a suit for declaration and perpetual injunction in relation to an immovable property wherein the plaintiff has been examined on 24.01.2007; and it is noticed that on 24.01.2007 while granting time for producing other witnesses on costs, the matter was placed for plaintiff's evidence on 28.04.2007. On that date, although no evidence was present but the learned Presiding Officer was also on leave and the matter was adjourned to 18.07.2007 when the learned trial court proceeded to close the evidence of the plaintiff. In the overall facts and circumstances of this case, this Court is of opinion that when the plaintiff made an application for leading evidence and by that time the witnesses of the defendants whose affidavits had been filed were yet to be cross-examined, an opportunity could have been extended by the learned trial court on reasonable terms of costs without causing any prejudice to the other side and to facilitate the decision of the case on merits. In the over all circumstances of the case and looking to the subject matter of dispute, in the interest of justice it appears appropriate that the plaintiff petitioner be allowed one more opportunity to lead evidence but of course on the condition of production of the witnesses by himself and upon making payment of costs in the sum of Rs.2,500/- to the 3 contesting defendants on the next date of hearing. It is informed that the matter is fixed before the trial court on 15.02.2008. The petition is, therefore, allowed to the extent indicated above; while the impugned orders are set aside, the learned trial court is directed to permit one and last opportunity to the plaintiff to produce his entire evidence on the next date i.e., 15.02.2008 of course on the condition that the plaintiff shall make payment of costs in the sum of Rs.2,500/- to the contesting defendants. It is made clear that on the plaintiff's failure to comply with the requirements of this order, the trial court would not be required to extend any further opportunity to the plaintiff and shall proceed with the matter in accordance with law. (DINESH MAHESHWARI), J. s.soni