IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4550/2004 Shimbhu Dayal S/o Shri Hazari Lal Versus Late Kishori Devi (Deceased) through Smt. Girja Devi and Another Date of Order ::: 04.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri H.K. Sharma, Counsel for the petitioner Shri Amit Gupta, Advocate, for Shri Behari Lal Agarwal, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. The defendant-petitioner has preferred this writ petition challenging the impugned order dated 14th May, 2004 (Annexure-3) passed by the trial court rejecting his application under Order 9 Rule 7 read with Section 151 of the Code of Civil Procedure for setting-aside the ex-parte order and closing his evidence. The plaintiff-respondent filed a suit for permanent injunction in the year 1995 wherein the plaintiff's evidence was closed on 22nd November, 2002 and the case was fixed for defendant's evidence on 29th January, 2003. Five opportunities were granted to the defendant to lead evidence, but no evidence was adduced and on 22nd November, 2003 last opportunity was granted and case was fixed for 12.02.2004 but on that date also no evidence was adduced on behalf of the defendant and, looking to the facts and circumstances of the case, again the court granted last opportunity at the costs of Rs.100/- and the case was fixed for 11.03.2004, but on that date neither evidence was adduced nor cost was paid and the counsel for the defendant pleaded no instructions in the matter, therefore, the trial court not only closed the defendant's evidence but also passed ex-parte proceedings against the defendant and fixed the case ex-parte for arguments. The defendant thereafter filed an application dated 1st April, 2004 in the trial court under Order 9 Rule 7 read with Section 151 of the CPC for setting- aside the ex-parte proceedings and to allow the defendant to lead evidence which has been dismissed by the trial court vide impugned order dated 14th May, 2004. The learned counsel for the petitioner contended that the defendant was not well on the date when the case was fixed for defendant's evidence, therefore, he could not make himself present on that date and his counsel wrongly pleaded no instructions in the case on his behalf, therefore, in the interest of justice, one more opportunity may be granted to him to lead evidence while setting-aside the ex-parte proceeding and so far as the delay of proceedings is concerned, the plaintiff may be compensated by way of costs. The learned counsel for the plaintiff-respondent contested the writ petition and contended that no medical certificate was placed on the record, therefore, the trial court was right in rejecting the application of the defendant and there is no merit in this writ petition which deserves to be dismissed. I have considered the submissions of the learned counsel for the parties and examined the impugned order passed by the trial court. The reasons assigned by the trial court for rejecting the application prima facie appears to be satisfactory but, in the interest of justice, I think it fit and proper that interest of justice will meet in case one more opportunity is granted to the defendant-petitioner particularly when further proceedings of the trial court have been stayed by this court since 19th July, 2004 while issuing notice to show cause of the writ petition to the respondents. Consequently, the writ petition is allowed and the defendant- petitioner is permitted to lead its evidence on particular two dates to be fixed by this Court subject to payment of costs of Rs.3,000/- (Rupees three thousand). The defendant-petitioner shall produce his witnesses in the Court on 4th and 5th of May, 2008 at his own for recording their statements. It is made clear that in case the defendant does not lead his evidence on the aforesaid dates or does not pay the amount of costs before recording his evidence then the evidence of the defendant will be deemed to have been closed and no further opportunity will be granted to the petitioner. There will be no order as to costs so far as the present writ petition is concerned. (Narendra Kumar Jain) J. //Jaiman// IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.3881/2004 In S.B. Civil Writ Petition No.4550/2004 Shimbhu Dayal S/o Shri Hazari Lal Versus Late Kishori Devi (Deceased) through Smt. Girja Devi and Another Date of Order ::: 04.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri H.K. Sharma, Counsel for the petitioner Shri Amit Gupta, Advocate, for Shri Behari Lal Agarwal, Counsel 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//