1 In the High Court of Judicature for Rajathan at Jaipur Bench Jaipur Judgment in S.B.Civil Writ Petition No. 1479/2009 Shrichand Goyal and another vs Addl. Civil Judge(Jr. Div.)and Juld. Magistate,No.1, Jaipur City, Jaipur and ors Date of Judgment : February 10,2009 Present Hon'ble Mr. Narendra Kumar Jain,J Mr. Amit Jindal, for the petitioners. Mr.Prasant Chaudhary, for the respondents. By the Court: Admit. 2. At the request of learned counsel for both the parties, the arguments were heard and the writ petition is being disposed of. 3. The defendants-petitioners have preferred this writ petition challenging the order dated 16.1.2009 whereby their evidence have been closed by the trial court. 4. Briefly stated the facts of the case are that the plaintiff-respondent filed a suit for eviction, possession 2 and permanent injunction in the trial court against the defendants in the year 2002. The defendant filed written statements and thereafter issues were framed. The case was fixed for plaintiff evidence which was closed on 2.5.2007 and the case was fixed for defendant's evidence on 26.5.2007. The matter was adjourned from time to time either on the request of learned counsel for the defendants or to grant time to cross-examine by plaintiff. DW-1 to DW-4 were cross- examined in the case. DW-4 was cross-examined by plaintiff on 16.1.2009 and after completion of his cross- examination, the defendants again filed one affidavit of Sushil Kumar Jain and made a request that his affidavit may also be taken on record. The trial court refused to take the affidavit on record in view of the fact that his name was not included in the list of witnesses and consequently, closed the defendant's evidence. Being aggrieved with the same, this writ petition has been preferred. 5. Learned counsel for the petitioners contended that from the order-sheets enclosed with the writ petition, it is clear that on almost of the dates, it was the plaintiff who took time to cross-examine defendants-witnesses 3 and proceedings under trial were not delayed because of negligence or non production of the defendant witnesses. The cross-examiantion of DW-4 was completed on 16.1.2009 and on the same day, one affidavit of Sushil Kumar Jain was produced by the defendants which should have been taken on record and the case should have been fixed for his cross- examination but the trial court committed illegality in not taking on record his affidavit, therefore, the impugned order be set aside and defendants be given one last opportuntiy to lead evidence of Sushil Kumar Jain as a last witness. He also contended that even if some delay in the matter then plaintiff could have been compensated by awarding a reasonable amount of cost. 6. Learned counsel for the respondents supported the impugned judgment and contended that there is no illegality in the order passed by the trial court so as to call for any interfence of this court. He contended that the name of Sushil Kumar Jain was not included in the list of witnesses, therefore, the trial court rightly passed an order that his affidavit will not be taken on record. He further submitted that the affidavit was filed 4 only to delay the proceedings as present suit filed by him is for eviction. It is further contended that in case this court is inclined to allow the defendants to lead evidence of Sushil Kumar Jain then a date may be fixed and on that date, the said witness should be available for cross-examination of the plaintiff and reasonable amount of cost may also be awarded. 7. I have considered the submissions of learned counsel for the parties and examined the impugned order and other documents enclosed with the writ petition. The present suit was filed in the year 2002 and the case was fixed for defendants' evidence on 26.5.2007. The cross-examinatin of DW-1 remained incomplete due to shortage of time with the trial court. Thereafter, Presiding Officer was transferred, then counsel for either party took time to cross-examine DW-1 Shrichand Goyal which was completed on 10.10.2007. Thereafter DW-2 Rakesh Goyal, DW-3 Prakash Saini and DW-4 Babu Khan were cross- examined on various dates. The cross-examination of DW-4 was completed on 16.1.2009 and on the same day, affidavit of Sushil Kumar Jain was produced on behalf of the defendants on the record and for his 5 cross-examination but defendant's evidence was closed. Although, the order of trial court appears to be reasonable as his name was not included in the list of witnesses yet in the interest of justice, I think it fit and proper that one last opportuntiy may be allowed to defendant to make present Sushil Kumar Jain for cross examinati by the plaintiff on a particular date on cost. The case is fixed in the trial court 25.2.2009. 8. Consequently, the writ petition is disposed of. The trial court is directed to take on record the affidavit of Sushil Kumar Jain filed on behalf of defendants. It will be the duty of the defendants to make Sushil Kumar Jain present on the next date in the trial court i.e.25.2.2009 for cross-examination and he will be cross-examined on that day by plaintiff. The defendants will not be allowed to lead any other evidence in the matter. The defendants will also pay a sum of Rs. 1,000/- (One thousand only) toward cost to the plaintiff before fruther proceeding in the trial court. So far as this writ petition is concerned, the costs made easy. (Narendra Kumar Jain),J om,