JUDGMENT 1. - Although the matter has come-up for confirmation of interim stay order passed by this Court, yet the learned counsel for both the parties contended that looking to the short controversy involved in the present matter, the appeal itself may be heard finally and disposed of at this stage itself. 2. The prayer of learned counsel for both the parties is accepted and the appeal is heard finally and being disposed of. 3. Plaintiff-appellant filed a suit for declaration and permanent injunction in the trial court wherein it was prayed that a decree of declaration may be passed in favour of the plaintiff to the effect that the judgment and decree 1o dated 18.01.1994 passed by the Additional District Judge No. 6, Jaipur City, Jaipur, in Civil Suit No. 245/1992 as well as sale-deed dated 28.02.2003, executed in pursuance of the said decree, are void and ineffective against the plaintiff. 4. The defendants No. 1 and 2 filed their joint written-statement denying the contents of the plaint. 5. The detailed facts of the case are not being given as both the parties did not adduce their evidence in the trial court and matter is being remanded to the trial court for deciding the matter afresh after affording an opportunity to both the parties to adduce their evidence. 6. The trial court framed nine issues on 29.07.2005 and fixed the case for plaintiff's evidence on 31.08.2005. The plaintiff did not adduce any evidence in spite of grant of time on various dates and on costs also, and ultimately the plaintiff's evidence was closed on 11.10.2006, and the trial court fixed the case for the defendant's evidence. The defendants did not adduce any evidence on their behalf also in view of the fact that the plaintiff did not adduce any evidence. 7. The trial court, vide impugned judgment and decree, dismissed the suit of the plaintiff, hence this appeal has been preferred on behalf of the plaintiff. 8. The defendants did not adduce any evidence on their behalf also in view of the fact that the plaintiff did not adduce any evidence. 7. The trial court, vide impugned judgment and decree, dismissed the suit of the plaintiff, hence this appeal has been preferred on behalf of the plaintiff. 8. The learned counsel for the appellant contended that the appellant was sick on 11.10.2006 and an application was moved to grant one more opportunity to lead evidence, which is clear from the order-sheet dated 11.10.2006, therefore, it was not proper and justified on the part of the trial court to close the plaintiff's evidence and, in the interest of justice particularly keeping in view the fact that no reply to the said application was filed by the defendants, an opportunity ought to have been granted to the plaintiff to lead evidence. 9. The learned counsel for the respondents contended that the issues were framed in the case on 29.07.2005 and the case was fixed on plaintiff's evidence on 31.08.2005 and thereafter the case remained pending for plaintiff's evidence upto 31.10.2006 i.e. for about one-year-three-months period, and about fourteen opportunities were given to the plaintiff-appellant for the said purpose, therefore, it cannot be said that the trial court committed any illegality in dismissing the application of the plaintiff for grant of further time to adduce his evidence and in closing plaintiff's evidence. 10. It is further contended that in case this Court inclines to grant one more opportunity to plaintiff to adduce evidence by allowing this appeal then at-least a heavy costs may be imposed on the appellant and a fixed date may be given to adduce the plaintiff's evidence in the case. 11. I have heard the learned counsel for both the parties and also perused the record of the case. 12. The record of the trial court shows that the trial court framed the issues in the case on 29.07.2005 and thereafter the case was fixed for plaintiff's evidence on 31.08.2005; on that date, at the request of the plaintiff, the case was adjourned to 14.10.2005, and again on 06.12.2005, 18.01.2006 and 16.02.2006. The plaintiff did not adduce any evidence on 16.02.2006 and moved an application under Order 11 Rule 12 of the Code of Civil Procedure. The arguments of the defendants were heard on the said application. The plaintiff did not adduce any evidence on 16.02.2006 and moved an application under Order 11 Rule 12 of the Code of Civil Procedure. The arguments of the defendants were heard on the said application. The case was fixed for plaintiff's arguments on the said application on 25.02.2006. The case was again adjourned at the plaintiff's request for 15.04.2006, 19.05.2006, 10.07.2006 and 20.07.2006. The trial court heard the arguments of the plaintiff on the application under Order 11 Rules 12 and 14 of the Code of Civil Procedure, and dismissed the same on 20.07.2006 and fixed the case for plaintiff's evidence again on 17.08.2006. The plaintiff again did not adduce any evidence and filed an application under Order 13 Rule 10 of the Code of Civil Procedure. The case was fixed for arguments on the application as well as for plaintiff's evidence on 01.09.2006. The arguments on the said application were heard and the trial court dismissed the same on 01.09.2006, and again fixed the case for plaintiff's evidence on 11.10.2006, and on that date the trial court, while dismissing the plaintiff's application to grant another opportunity to adduce evidence as plaintiff was sick, closed the plaintiff's evidence. 13. The above facts make it clear that case was fixed for plaintiff's evidence first time on 31.08.2005 and it was adjourned to 14.10.2005, 06.12.2005 and 18.01.2006 on costs. Case was further adjourned for this purpose on 16.02.2006 but on that date plaintiff filed an application under Order 11 Rule 12, C.P.C., which remained pending till it was dismissed on 20.07.2006 and case was fixed for plaintiff's evidence on 17.08.2006. Plaintiff's filed another application under Order 13 Rule 10, C.P.C., on s 17.08.2006 which was dismissed on 01.09.2006 and case was fixed on 11.10.2006. The counsel for plaintiff moved an application on 11.10.2006 that he has received telephonic message from plaintiff that he is suffering from slip-disk, therefore, he is unable to attend the case, therefore, one opportunity may be granted to lead plaintiff's evidence. The defendants did o not file any reply to the application. The trial court dismissed the plaintiff's application on 11.10.2006 and closed the plaintiff's evidence and fixed the case for defendant's evidence on 07.11.2006. The plaintiff filed another application duly supported by an affidavit on 07.11.2006 to reopen his evidence, wherein it was contended that he had severe backache and he s consulted Dr. The trial court dismissed the plaintiff's application on 11.10.2006 and closed the plaintiff's evidence and fixed the case for defendant's evidence on 07.11.2006. The plaintiff filed another application duly supported by an affidavit on 07.11.2006 to reopen his evidence, wherein it was contended that he had severe backache and he s consulted Dr. S.S. Sankhla, Assistant Professor, S.M.S. Hospital, Jaipur, and remained under his treatment and due to his illness he could not attend the court and adduce his evidence on 11.10.2006, therefore, an opportunity be granted to him to lead evidence. The case was adjourned for 17.11.2006. The defendant No. 1 filed reply to the application and prayed to dismiss the o application. The trial court dismissed the plaintiff's application on 17.11.2006. Thereafter the case was fixed for defendant's evidence but in absence of any evidence of plaintiff, the defendant's also did not adduce any evidence. The trial court after hearing the parties, in view of the fact that plaintiff has not adduced any evidence, dismissed the plaintiff's suit vide impugned judgment. 5 The trial court dismissed the plaintiff's application dated 11.10.2006 in absence of affidavit in support thereof. The application shows that it was filed by plaintiff's counsel wherein he mentioned the facts on the basis of telephonic message. The application was duly signed by the counsel, therefore, there was no reason to disbelieve the contents of the application o or at the most, the trial court could have asked the appellant to produce medical-certificate of the appellant. The trial court dismissed the plaintiff's application dated 07.11.2006 to reopen plaintiff's evidence vide order dated 17.11.2006 by observing that plaintiff got about 14 dates to lead evidence during the period from 29.07.2005 to 11.10.2006 whereas the impugned 5 judgment and record of the trial court reveal that plaintiff's application under Order 11 Rule 12, C.P.C., remained pending from 16.02.2006 to 20.07.2006 (six dates) and another application under Order 13 Rule 10, C.P.C., remained pending from 17.08.2006 to 01.09.2006 (two dates) and on 11.10.2006 the evidence was closed. After scrutiny of entire matter I am of the view that the o reasons assigned by the trial court in the order dated 11.10.2006 for closing the evidence were not correct and the trial court committed an illegality in passing the orders dated 11.10.2006 and 17.11.2006 closing and refusing to reopen the plaintiff's evidence in the facts and circumstances of the present case. The plaintiff's suit has been dismissed solely on the ground that plaintiff failed to produce any evidence. This was a matter relating to plot of land measuring 1784 sq. yards and from the pleadings of the parties it appears to be a case of great contest. In these circumstances and in the interest of justice I find this case to be a fit one to allow one more opportunity to plaintiff to lead his evidence. 14. Consequently, the appeal is allowed. The impugned judgment and decree dated 06.01.2007 passed by the trial court is set aside. Both the parties are directed to appear before the trial court on 27.11.2007. The plaintiff shall adduce his evidence on the said date in the trial court. In case the plaintiff's evidence is not concluded on that date then it will be open to the trial court to grant further reasonable time of one or two dates of two weeks to adduce remaining evidence. Thereafter the case will be fixed for defendant's evidence and suit will proceed further in accordance with law. 15. The appellant shall pay costs of Rs. 7,500/- to the respondents on or before the next date fixed in the trial court. 16. It goes without saying that in case the payment of costs is not made then the trial court shall not record evidence of the plaintiff. It is further made clear that in case the plaintiff does not adduce any evidence in the trial court on the date fixed by this Court i.e. 27.11.2007 then the impugned judgment passed by the trial court shall stand as it is. 17. Registry is directed to send the record of the trial immediately.Appeal Allowed as Above. *******