- (1.) THE challenge in the present petition is the order dated 1.3.2008 passed by the learned Addl. Civil Judge (JD) NO.1, Bharatpur (hereinafter referred to as the trial court) in Civil Suit NO.28/2008, whereby the trial court has refused to reopen the evidence of the plaintiff which was closed on 3.8.2007.
(2.) IT has been submitted by the learned counsel Shri Pankaj Jain for the petitioner that the learned counsel for the petitioner in the trial court was under the wrong impression that the application for temporary injunction would be heard first and therefore, he did not convey the petitioner about the date on which the petitioner had to remain present before the court for leading his evidence. Learned counsel submits that the petitioner be given one more opportunity to lead his evidence. The learned counsel for respondents submits that though the trial court had granted sufficient opportunity to the petitioner to lead his evidence, the petitioner did not examine himself and therefore, his right to lead evidence was closed by the trial court. He also submitted that the impugned order being just and proper, it should not be interfered with. In the instant case, it appears that the petitioner plaintiff has filed the suit for injunction against the respondents defendants for restraining them from closing his right of way to approach his field. It appears that in the the said suit, the petitioner had also filed an application for temporary injunction which was pending. According to the learned counsel for the petitioner, there was confusion about the date of hearing of the TI application and about the date of the suit and therefore, the petitioner did not remain present to lead his evidence. This court does not find much substance in the submission made by the learned counsel for the petitioner inasmuch as from the impugned order, it transpires that the petitioner was given sufficient opportunity to lead the evidence and thereafter the court had closed his right to lead the evidence. However, considering the facts and circumstances of the case, one more opportunity is granted to the petitioner for leading his evidence, in the interest of justice, subject to the payment of cost of Rs.3,000/- At this stage, learned counsel for the petitioner submits that the respondents defendants did not lead the evidence before the trial court as the plaintiff had not led his evidence, however, if the plaintiff is permitted to lead the evidence, the defendants also be permitted to lead their evidence, if necessary. View of the above, the impugned order dated 1.3.2008 passed by the trial court is set aside. The petitioner is permitted to lead the evidence subject to the payment of cost of Rs.3,000/- that may be deposited in the trial court within two weeks from today. It shall also be open for the respondents defendants to lead their evidence if they so desire.
(3.) THE petition stands allowed accordingly.;