1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.Civil Writ Petition No. 4154/07 (Raj Mehra vs. Ramdutt & Anr.) Date of Order:- 23.11.2007. HON'BLE MR.JUSTICE SANGEET LODHA Mr.S.K.Gupta, for the petitioner. Mr.Vijay Mehta, for the respondents. BY THE COURT:- This writ petition is directed against order dated 11.5.07 passed by Additional District Judge No.1, Jodhpur, whereby while accepting the application preferred on behalf of one Shri Ramdutt Thanvi , earlier summoned as witness at the instance of petitioner-defendant, it has been ordered that for the reasons stated in the application, he need not be summoned as witness any further. The learned trial court has also ordered for closure of the evidence of the defendants on the ground that even after sufficient opportunity being granted , the defendant has not cared to produce the witnesses. I have heard the learned counsels for the parties and perused the record. If the witness Ramdutt Thanvi summoned by the learned trial court is not in a position to appear before the Court on 2 account of his sickness or infirmity is unable to attend the court, then, nothing prevented the learned trial court to issue a Commission in terms of Order XXVI of Civil Procedure Code, 1908 for his examination as witness. The learned trial court has erred in holding that by compelling the said witness , no purpose is going to be served inasmuch as, in the application preferred, it has been stated that the said witness does not possess any knowledge about the dispute pending before the court. It is next contended by the learned counsel for the petitioner that the matter was pending for summoning the witness Shri Ramdutt Thanvi, therefore, he could not produce the other witnesses for cross examination . A bare perusal of the order sheets goes to show that the matter was posted for defendant evidence and was adjourned time and again on several occasions but, the defendant failed to produce the evidence. Even if, the matter was pending for summoning the witness Shri Ramdutt Thanvi, then too, nothing prevented the petitioner from producing his other witnesses for cross examination. It is contended by the learned counsel that he intend to produce only one witness Pratap Singh for cross examination, therefore, he may be granted one opportunity to produce the witness for the said purpose. The prayer is not opposed by the learned counsel 3 appearing on behalf of the respondents, however, it is contended that since the petitioner has not produced the evidence even after several opportunities being granted , therefore, if such opportunity is granted, heavy cost should be imposed. Accordingly, the writ petition is allowed partly. On an application being preferred on behalf of the deendant,the learned trial court shall consider his prayer for examination of the witness Shri Ramdutt Thanvi by issuing commission in accordance with law. An opportunity is granted to the defendant to produce the witness Shri Pratap Singh for cross examination on payment of cost Rs.1500/-. The defendant shall produce the said witness for cross examination on the date fixed by the learned trial court . No further opportunity shall be granted. On the facts and in the circumstances of the case, learned trial court is directed to decide the suit expeditiously, preferably within a period of three months from the date of this order. No order as to costs. (SANGEET LODHA),J.