IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Writ Petition No.5850/2004 Ramavtar S/o Pooran Mal Versus Sharda Devi D/o Shri Sita Ram & Others 2. S.B. Civil Writ Petition No.5811/2004 Parvati Devi W/o Shri Ram Niwas Versus Sharda Devi D/o Shri Sita Ram & Others Date of Order ::: 21.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Dinesh Kala, Counsel for petitioners in both petitions None present for the respondent #### By the Court:- In these two writ petitions challenge is made to the order dated 11.08.2004 passed by the trial court in Civil Suit No.45/93 filed by the plaintiff-respondent No.1, therefore, they are being disposed of by this common order. Heard learned counsel for the petitioners and examined the impugned orders dated 3rd December, 2003 and 11st August, 2004 (Annexure-1 and 2, respectively)), passed by the trial court. The plaintiff-respondent No.1 filed a suit for permanent injunction and cancellation of sale-deed in respect of disputed property in the trial court wherein the plaintiff's evidence was closed on 30th April, 2003 and case was fixed for defendants' evidence on 10th July, 2003. The defendants did not lead their evidence and the case was adjourned for 10th September, 2003, 29th October, 2003 and 3rd December, 2003, and on that date the defendants' evidence was closed. The defendants No.4 and 5, who are the petitioners in both these petitions, filed an application in the trial court for reopening of their evidence stating therein that on 3rd December, 2003 the defendants' evidence was closed; their counsel was ill and could not present himself in the court and in his absence their evidence was closed. It was further contended that the defendants were not informed by their counsel about his absence and closing of evidence, therefore, one opportunity may be granted to defendants to lead their evidence in the suit. Both the applications filed by the defendants No.4 and 5 were contested by the plaintiff by filing two separate replies thereto. The trial court, after considering the submissions of learned counsel for both the parties, dismissed both the applications vide common order dated 11th August, 2004. The aforesaid two orders dated 3rd December, 2003 and 11th August, 2004 have been challenged by the defendants No.4 and 5 by way of these two separate writ petitions. The learned counsel for the petitioners contended that the case was fixed for defendants' evidence on 1st July, 2003 and thereafter on 29th October, 2003 and lastly on 3rd December, 2003, but on that date the counsel for the defendants was not present due to his illness and, in these circumstances, the case ought to have been adjourned for defendants' evidence. The defendants No.4 and 5 filed applications in the trial court requesting to reopen the defendants' evidence and to allow them to lead their evidence as it was a suit for permanent injunction and cancellation of sale-deed in respect of disputed property otherwise their rights will be seriously affected, but the trial court wrongly rejected the applications and the impugned order passed by the trial court is liable to be set-aside. So far as the delay of proceeding is concerned, the learned counsel for the petitioners contended that the same could have been compensated by awarding costs to the plaintiff. I have considered the submissions of learned counsel for the petitioners in the light of impugned orders dated 3rd December, 2003 and 11st August, 2004. This was a suit, which was filed in the year 1993. As per the contention of the petitioners the case was fixed for plaintiff's evidence on 6th December, 2000 and the case remained pending for plaintiff's evidence for about 2 years and 4 months and the plaintiff's evidence was closed on 30th April, 2003. On 3rd December, 2003, the counsel for the defendants was not present because of his illness, therefore, it was a sufficient ground for adjournment of the case but the trial court wrongly closed the evidence and, in these circumstances, the applications were moved before the trial court itself to allow the defendants' to lead their evidence but the same were also dismissed on 11th August, 2004. Although this was a suit of the year 1993 and two opportunities were granted to the defendants to lead evidence on 10th September, 2003 and 29th October, 2003 but so far as 3rd December, 2003 is concerned the counsel for the defendant was not present in the court; in these circumstances, it would have been more better for the trial court to have adjourned the case or to allow the applications filed by the defendants which were dismissed on 11th August, 2004. So far as the delay of proceedings in the trial court is concerned, the same could have been compensated by way of costs. In these circumstances, I am of the view that the petitioners are entitled one more opportunity to lead their evidence on the dates to be fixed by this Court. Consequently, the writ petitions are allowed. The impugned orders dated 3rd December, 2003 and 11st August, 2004 passed by the trial court are set-aside. The applications filed by the defendants No.4 and 5 are allowed and both the defendants are permitted to lead their evidence on the date to be fixed by this Court on payment of costs of Rs.3,000/- (Rupees three thousand only) to be paid by each defendants No.5 and 6 separately to the plaintiff before adducing their evidence in the trial court. The petitioners are directed to adduce their evidence at their own on 26th and 27th May, 2008. It is made clear that in case the defendants failed to adduce their evidence on the aforesaid dates or fail to pay the amount of costs on or before the aforesaid dates, then their evidence will be deemed to have been closed and no further opportunity in this regard will be granted to them. So far as these writ petitions are concerned, the costs is made easy. This order disposes of two writ petitions, therefore, the Registry is directed to place a copy of this order in the file of S.B. Civil Writ Petition No.5811/2004. (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.5008/2004 In S.B. Civil Writ Petition No.5850/2004 Ramavtar S/o Pooran Mal Versus Sharda Devi D/o Shri Sita Ram & Others Date of Order ::: 21.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Dinesh Kala, Counsel for petitioners None present for the respondent #### By the Court:- In view of the order passed in the writ petition, the stay application, filed therewith, also stands disposed of. (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.4971/2004 In S.B. Civil Writ Petition No.5811/2004 Parvati Devi W/o Shri Ram Niwas Versus Sharda Devi D/o Shri Sita Ram & Others Date of Order ::: 21.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Dinesh Kala, Counsel for petitioners None present for the respondent #### By the Court:- In view of the order passed in the writ petition, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//