- (1.) HEARD learned counsels for the parties.
(2.) INSTANT writ petition has been filed under Article 227 of the Constitution of India challenging the impugned order dated 20.10.10 passed by Civil Judge (J.D.) Nimbahera, District Chittorgarh by which the trial court closed the opportunity to lead evidence of petitioner defendants. Learned counsel for the petitioner submits that alongwith the written statement, a list of witnesses was filed by the petitioner defendants which is Annex.1 but ignoring the fact of filing list of witnesses, the trial court passed an order to close the opportunity to lead evidence which is totally illegal. It is also pointed out that while issuing notice to respondents on 08.11.10, the Cordinate Bench of this Court passed an order that trial court may examine the record all over again and if it is found that the petitioners had filed the list of witnesses as contended and seeks to summon only the persons/officers as mentioned in the said list then, the trial court may issue summons for appearance of such witnesses on the next date of hearing and thereafter proceed with the trial of case. The Co-ordinate Bench further observed that if the plaintiff raises objection in adopting this procedure, the learned trial court shall record such objection and in that event, further proceedings in the suit shall remain stayed till the next date in this writ petition. As per learned counsel for the petitioner, inspite of above order and the fact that list of witnesses Ex.1 is very much on record, the defendants raised objection not to proceed further and upon that objection, the trial court stayed the proceedings which is totally illegal. Learned counsel for the petitioner submits that to grant reasonable opportunity for deciding controversy, trial court was under obligation to the defendants but in this case, the trial court has denied the opportunity to lead evidence to petitioner defendant upon illegal grounds and while observing wrong facts in the order, therefore, the order impugned may be quashed. Per contra, learned counsel for the respondent vehemently argued that although list of witnesses has been filed by the petitioner defendants alongwith their written statement but inspite of above fact, for other reasons mentioned in the order, the trial court has rightly closed the opportunity to lead evidence of petitioner defendants. Therefore, this writ petition filed by the petitioners deserves to be dismissed. After hearing learned counsel for the parties, first of all, I have perused the certified copy of list of witnesses Annex.1 which is not disputed by the respondents plaintiff. But it is very strange that trial court wrongly observed in the impugned order dated 20.10.10 that." In my opinion, a totally false assertion has been incorporated in the order passed by trial court for rejection of prayer of petitioner to lead evidence. It appears from the order that although the other reasons are mentioned in the order but on the face of record, it emerges that Presiding Officer did not care to even peruse the record and passed the order in a very casual manner, therefore, the order passed by trial court dated 20.10.10 suffers from material illegality and perversity. In view of above discussion, this writ petition is allowed. The order impugned dated 20.10.10 is hereby quashed and set aside with further direction to trial court to summon the witnesses from the list as desired by the petitioner and then proceed for trial. ;