Alok Sharma, J. - (1.) THIS petition has been filed challenging the order dt. 26.02.2009, passed by the Additional District & Session Judge (Fast Track) No. 1, Alwar (hereinafter 'the trial Court') whereby the defence evidence of the petitioner, one of the defendant in the suit before the trial Court (hereinafter 'the defendant'), had been closed. A further challenge has been made to the order dt. 25.04.2009, passed by the trial Court, wherein an application filed by the defendant for reopening the defence evidence was dismissed. Heard the counsel for the defendant as also the respondents -plaintiffs (hereinafter 'the plaintiffs').
(2.) MR . Manish Gupta, appearing for the plaintiffs, has submitted that as the pendency of the present writ petition is delaying the proceedings in the suit pending before the trial Court, he would concede to the two orders impugned being set aside subject to the petitioner defendant being visited with exemplary cost. He submits that from the orders of the trial Court, it is evident that multiple opportunities were given to the petitioner defendant to file his affidavit in evidence and yet the affidavit was not filed solely with the intent of delaying the trial in a suit filed under the Fatal Accident Act where the plaintiffs lost two children. A perusal of the order -sheets as passed -over to this Court in the course of hearing of this petition indicates that the defendant was given several opportunities for filing his affidavit in evidence, but he failed to do so. Ordinarily, it is not for this Court in the exercise of its jurisdiction under Art. 227 of the Constitution of India to upset a well considered and reasoned order passed by the trial Court which is not vitiated either by a lack of or excess of jurisdiction, perversity or misdirection in law. However, on the concession of the counsel for the plaintiffs, I would set aside the orders dt. 26.02.2009 and 25.04.2009, passed by the trial Court and allow the petitioner -defendant one single opportunity for filing his affidavit in evidence within seven days of the next date fixed in the suit before the trial Court and being ready to be cross -examined thereon on behalf of the plaintiffs on the same day. This one opportunity would however be subject to the payment of cost of Rs. 5,000/ -. The cost be paid to the plaintiff before/simultaneous to the filing of the affidavit in evidence and the cross -examination of the defendant thereon. The writ petition stands disposed of accordingly.;