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[CW-6489/2018]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ No. 6489/2018

1.

Manmal S/o Late Kanmal Ji

2.

Kamal S/o Shri Manmal,

3.

Kishore S/o Shri Manmal

4.

Shripal Alias Himmatmal S/o Shri Manmal ,

All By Caste Oswal Singhvi, Resident Of Merta City, Tehsil

Merta District Nagaur.

----Petitioners

Versus

Ravindra Kumar S/o Shri Kasturmal , By Caste Oswal Singhvi,

Business And Residence Address M/s. Raja Sales, Near Krishi

Upaj Mandi Merta City, Tehsil Merta, Dist. Nagaur 341510

----Respondent

For Petitioner(s)

:

Mr. Kuldeep Purohit, Dr. Akshaya

Shukla

For Respondent(s)

:

Mr. Vishal Sharma

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

25/07/2018

1.

The petitioner has preferred this writ petition under

Article 226 & 227 of the Constitution of India claiming the

following reliefs:

“1. An appropriate writ direction or order be issued

quashing the order dated 19.04.2018 Annex.21) passed

by the learned Civil Judge Merta, Dist. Nagaur, and the

application filed by the respondent-plaintiff under

Section 151 CPC may kindly be dismissed.

2. Any other order or direction, which this Hon’ble Court

deemed just and proper be passed in favour of the

petitioner.”

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2.

Brief facts of this case, as noticed by this Court, are

that the respondent-plaintiff filed a suit for mandatory and

perpetual injunction and damages against the petitioners-

defendants. On 17.09.2015 the petitioner-defendant No.1

submitted his affidavit in chief examination, and along with the

said affidavit a blue print map was also submitted with form No.3,

which was made by the DW 4 Gajdhar Abdul Vail.

3.

On 14.07.2016, the respondent-plaintiff filed an

application under Order 19 read with Section 151 CPC claiming

that the petitioner-defendant No.1 had produced the blue print

map along with his affidavit and further stated that the said map

was not placed on record, and therefore, the same has not been

the part of the affidavit. However, the learned court trial Court

vide order dated 04.10.2016 has rejected the application under

Order 19 read with Section 151 CPC filed by the respondent-

plaintiff. While passing the said order dated 04.10.2016, the

learned court below observed that the blue print map was

presented to clarify the factual situation of the subject matter and

apart from this, no substantial evidence was placed regarding the

blue print map in question.

4.

The evidence of the defendant was closed by the

learned trial court on 22.03.2017 and respondent-plaintiff sought

time for rebuttal evidence on which the matter was posted on

21.04.2017 and then on 26.04.2017 for the same purpose.

However, no rebuttal was produced by the respondent-plaintiff and

the respondent-plaintiff filed an application under Order 26 Rule 9

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for appointment of a Commissioner. The said application was

rejected with cost of Rs.500/- but simultaneously last opportunity

for rebuttal was granted by the learned trial Court on 10.05.2017.

4.

On 18.05.2017 the respondent-plaintiff filed an affidavit

in his chief examination and on filing of such affidavit, last

opportunity was granted for cross-examination of the respondent

and the matter was fixed for 13.07.2017 for the rebuttal evidence

of respondent-plaintiff. However, on 13.07.2017, the respondent-

plaintiff again sought time for producing the rebuttal evidence.

The learned trial court again granted time to the respondent-

plaintiff on 13.07.2017 for rebuttal evidence, only to the extent of

the issue No.3 and the matter was posted for 17.08.2017. The

further time was sought for the rebuttal evidence and the learned

trial court, in the interest of justice, granted last opportunity to

the respondent-plaintiff i.e. 24.08.2017.

5.

On 14.08.2017, the respondent-plaintiff filed an

application under Order