MAHESHWARI, J. - (1.) THIS writ petition is directed against the second and third part of the order as passed by the learned Additional District Judge (Fast Track) No. 2, Bhilwara on 21. 9. 2007 in Civil Suit No. 110/2005.
(2.) BRIEFLY put, the relevant facts and aspects of the matter are that the petitioner is facing a suit for declaration, recovery of possession and perpetual injunction as filed by the respondents Nos. 2 and 3 in relation to the properties mentioned in paragraph 4, 5 and 6 of the plaint (Annex. 1 ). The plaintiffs have alleged their rights to the properties in question as being the descendants of Naval Ram and his adopted son Chauthmal; have alleged the agricultural land stated in paragraph 5 and 6 of the plaint having been given to the defendant No. 1 -petitioner for cultivation on share basis and the defendant having taken possession of the residential property on request. While alleging defendant No. 1 having fraudulently got the land transferred in his name; having refused to hand over the share of produce; and having also refused to hand over possession of the land in question, the plaintiffs have also alleged the defendant No. 1 having unauthorisedly alienated the land comprised in Araji No. 8014 in favour of the defendant No. 2 who has further transferred the same to the defendant No. 3. The plaintiffs have prayed for the relief of declaration about their title to the properties in question; for declaration against the documents pertaining to transfer of Araji No. 8014; for dispossession of the defendants from the suit properties and delivery of possession to the plaintiff; and for other reliefs in injunction and damages for use and occupation. The petitioner-defendant No. 1 has put the matter to contention and has denied the claim as made by the plaintiffs of succession to the properties of Naval Ram; has asserted himself having lived as son with Chauthmal who had no issue; and has referred Chauthmal as his father. The petitioner has asserted the residential property having been purchased by his father Chauthmal and himself having raised construction thereat; has asserted the agricultural land in question either having been purchased by Chauthmal or having been in his khatedari; and has further asserted himself having remained in use and occupation of the same even during the life-time of Chauthmal. The defendant has alleged the plaintiffs to be working in conspiracy to somehow have him harassed. It appears that during the course of trial of the suit, a request was made by the plaintiffs for examination of the document (that seems to be a `will' allegedly executed by Chauthmal) by Forensic Science Laboratory; and the request was declined by the learned trial Court by its order dated 2. 4. 2007. S. B. Civil Writ Petition No. 2911/2007 filed by the plaintiffs against the said order dated 2. 4. 2007 was rejected by this Court on 30. 5. 2007. Intra-Court appeal, SAW No. 738/2007, taken by the plaintiffs was also dismissed by the Hon'ble Division Bench on 9. 8. 2007. However, the Hon'ble Division Bench noted the submissions made on behalf of the plaintiffs that they would like to lead evidence on their own by placing on record the evidence of hand-writing expert; and in relation to such statements, the Hon'ble Division Bench observed that if any evidence is produced before the learned trial Court, the trial Court may consider the same in accordance with law. It further appears that before passing of the aforesaid order by the Hon'ble Division Bench, the plaintiffs got the questioned document examined by an expert and sought the leave of the Court for production of such experts report along with its accompanying documents by way of an application dated 31. 7. 2007 (Annex. 5 ). The application so moved by the plaintiffs was put to contention by the defendant- petitioner by filing reply on 19. 9. 2007 (Annex. 6 ). Noteworthy it is that on 19. 9. 2007, the matter was ordered to be fixed on 21. 9. 2007 for arguments on the application and so also for evidence of the plaintiffs. The aforesaid application dated 31. 7. 2007 was taken up for disposal by the learned trial Judge on 21. 9. 2007. With reference to the facts available on record and so also with reference to the order passed by this Court, the learned trial Judge found it just and proper to take the hand-writing expert's report and the related documents on record and permitted the parties to examine and cross-examine the expert. It was also observed that the evidentary value could be argued by the parties before the Court but at this stage, the documents could not be denied to be taken on record. The learned trial Judge, accordingly, took the report and the related documents on record and permitted both the parties to lead evidence in that regard. [vide first part of the order dated 21. 9. 2007 (Annex. 7)] After pronouncement of the aforesaid order, taking the expert's report and related documents on record, learned counsel appearing for the petitioner-defendant No. 1 before the trial Court expressed that an application was intended to be filed and after half-an-hour filed an application with the submissions that the order passed by the Court for taking the experts report on record was intended to be questioned before the High Court and, therefore, the matter be adjourned. The prayer so made was opposed by the witness Mohan Lal present on behalf of the plaintiffs, who stated about his old age and also alleged the defendant-petitioner Jagdish having warned him not to make statements and having threatened that he would be removed out of society. Without making any comments on such allegations and leaving the parties free to take resort to legal proceedings, the learned trial Judge referred to the directions issued by this Court on 23. 8. 1994 in S. B. Civil Revision Petition No. 260/1993 that mere challenge or intention to challenge an order before the High Court is not sufficient for keeping the proceedings in trial in abeyance. The learned Judge reiterated the substance of the order passed earlier in the day for taking the expert's report on record; and observed that the matter was fixed for cross- examination of the plaintiffs witness PW-2 Mohan Lal, who was an old person in 85 years of age and had attended several dates of hearing. The learned Judge did not consider it justified to adjourn the matter and rejected the prayer for adjournment as made on behalf of the defendant-petitioner; and thus pronounced the second part of the order on 21. 9. 2007.
(3.) THE learned Judge thereafter extended an opportunity to cross-examine PW.-2 Mohan Lal and directed so; but the counsel for the defendant No. 1 made the statement that despite adjournment having not been granted, the witness would not be cross-examined. THE learned trial Judge observed that in such circumstances, there was no option except to close the cross- examination of PW. 2 Mohan Lal and ordered accordingly. The relevant portion of the second part of the order as passed by the learned trial Judge on 21. 9. 1997 reads as under:- *** The entire of the third part of the order dated 21. 9. 2007 reads as under:- *** ;