RAJASTHAN HIGH COURT

                              Champalal

                              Vs.

                              Lunaram

                              Civil Writ Petn. No. 323/2004
                                  (Sunil Kumar Garg, J.)

                              16.03.2004

                              ORDER

Sunil Kumar Garg, J.

1. Heard at admission stage.

2. The petitioners-defendants have filed the present writ petition under Article
226/227 of the Constitution of India on 6-1-2004 against the respondents with a prayer
that the order dated 2-5-2001 (Annex. P/1) passed by the learned Civil Judge (Junior
Division), Bikaner by which the learned Civil Judge has closed the evidence of the
petitioners-defendants be quashed and set aside.

3. The facts of the case as put forward by the petitioners are as under :

i) That the respondent No. 1 filed a suit against the petitioners and respondent
No. 2 for declaration and permanent injunction in the Court of Civil Judge
(Junior Division), Barmer (respondent No. 3) on 16-2-2003 bearing Civil Suit
No. 55/93.

ii) Further case of the petitioners is that the defendants (petitioners and
respondent No. 2) filed written statement in the trial Court on 18-3-1994 and
thereafter issues were framed on 23-9-1994 and the case was fixed for recording
the evidence of the plaintiff (respondent No. 1) and thereafter on 6-12-2000 i.e.
after a period of around six years from the date of framing of issues i.e. 23-9-
1994, the plaintiff's evidence was closed and the matter was fixed for recording
the evidence of the defendants on 12-1-2001.

iii) Further case of the petitioners is that on 12-1-2001 the Presiding Officer was
       on leave and thereafter the matter was adjourned to 5-2-2001 and on 5-2-2001,
       adjournment was sought by the counsel for the defendants and the matter was
       posted on 20-2-2001.

       iv) Further case of the petitioners is that on 20-2-2001, the matter was again
       adjourned to 8-3-2001 for recording the evidence of the defendants and on 8-3-
       2001, the summons of the witnesses were not received after service on the
       witnesses and thus, the trial Court ordered for production of all the witnesses at
       one instance and fixed the next dates as 19-4-2001 and 20-4-2001. The
       defendants filed process fee and summons for the witnesses within stipulated
       time on 11-4-2001.

       v) Further case of the petitioners is that on 19-4-2001 the defendants' witness
       ShriChampaLal was present, however, the statements were not recorded due to
       paucity of time and thus, the matter was adjourned to 1-5-2001 and on 19-4-
       2001, the trial Court did not pass any order regarding service of summons on
       the witnesses or for compelling the presence of the witnesses.

       vi) Further case of the petitioner is that on 1-5-2001, the witnesses were not
       present in the trial Court and the trial Court ordered to produce all the witnesses
       on 2-5-2001 and no order was passed for calling the witnesses on whom
       summons were already served.

       vii) Further case of the petitioner is that the trial Court through order dated 2-5-
       2001 (Annex.-P/1) closed the evidence of the defendants without giving
       reasonable and adequate opportunity to produce the evidence by the defendants
       (petitioners and respondent No. 2) and this order dated 2-5-2001 (Annex.-P/1)
       has been challenged in this writ petition.

4. In this writ petition, the main submission of the learned counsel for the petitioner is
that sufficient opportunity to produce the evidence should also have been given to the
defendants as when the witnesses were present on 19-4- 2001, the trial Court did not
record their evidence and similarly on 20-4- 2001, the evidence was not recorded, but
simply because on 1-5-2001 and 2-5- 2001, the witnesses were not produced by the
defendants, the evidence of the defendants was closed and thus, there was miscarriage
of justice.

5. The notices of the writ petition were issued to the respondents, but none has
appeared on their behalf.
6. Heard and perused the record.

7. In my considered opinion, if the defendants-petitioners are not allowed to produce
their evidence, the injustice would be done to them and therefore, in the interest of
justice, it would be better that one more opportunity should be given to the defendants-
petitioners to produce evidence in the trial Court.

8. For the reasons mentioned above, the order dated 2-5-2001 (Annex.-P/1) passed by
the learned Civil Judge, Barmer (respondent No. 3) is liable to be quashed and set
aside and the writ petition deserves to be allowed.

9. For the reasons mentioned above, the present writ petition is allowed and the order
dated 2-5-2001 (Annex.-P/1) passed by the learned Civil Judge, Barmer (respondent
No. 3) is quashed and set aside and the defendants- petitioners are directed to produce
their evidence on next two dates i.e. 5-4-2004 and 6-4-2004 and on that the learned
Civil Judge, Barmer (respondent No. 3) shall record the statements of all the witnesses
produced by the defendants-petitioners. It is made clear that it would be the duty of
the defendants-petitioners to produce the evidence themselves, but for that if they
want help through summons, they can take the same, but if summons are not served
on the witnesses, on the ground no further adjournment would be granted by the
learned Civil Judge, Barmer.

Petition allowed.