Shri. Babasaheb Babalal Jamadar v. Shri. Hasanchand Jamadar And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9085 OF 2013 Shri Babasaheb Babalal Jamadar.

... Petitioner.

Versus

Shri Hasanchand Jamadar & ors.

... Respondents.

--- Mr. Vijay Killedar, advocate for petitioner.

None for respondents.

--- CORAM : SMT.SADHANA S. JADHAV,J DATE : NOVEMBER 27, 2017 P.C.:

Heard the learned Counsel for the Petitioner. None appears for the respondent although served.

Rule. Rule made returnable forthwith.

The Petitioner herein happens to be the defendant No. 2 in R.C.S. No. 88 of 2007 pending before the Civil Judge, J.D. at Kurundwad. The suit had proceeded substantially. The Defendant 1/4

No. 2 i.e. the present petitioner happens to be the senior citizen. On 14/1/2011 the plaintiff had filed affidavit of examination in chief. On 4/10/2011 the case was posted for examination of a witness Nanasaheb Sutar. On 10/6/2011 no-cross order was passed. However, on 19/6/2012 said order was set aside. On 10/7/2013 since the advocates of the Bar Association of Kolhapur District were on strike, the advocate could not remain present to cross-examine the witness. And therefore, on the same day court had passed an order of "no cross", which indicates that the suit would proceed undefended. On 10/7/2013 the learned Court had passed an order of "no cross". On 23/7/2013 the Petitioner had filed an application requesting the court to set aside the order of no-cross. The said application was rejected by an order dated 23/7/2013 and hence, this Petition was filed on 26/8/2013.

The learned Counsel for the Petitioner submits that neither defendant No. 2 nor the advocate representing him had any intention of protracting the proceedings before the learned Court. However, 2/4

the circumstances were such that the defendant No. 2 could not participate in the said proceedings diligently. In the interest of justice, the order dated 23/7/2013 deserves to be quashed and set aside. However, the Petitioner deserves to be saddled with the cost. The Petitioner shall deposit a cost of Rs. 5000/- before the Court of Civil Judge, J.D., Kurundwad on or before 15/12/2017 and the learned trial Court is hereby directed to permit the Petitioner to cross-examine the witness on the given date which shall not be later than 6 weeks from 15/12/2017. The learned Court shall not grant any unwarranted adjournment to the Petitioner. The next stipulated date for cross-examination shall be given on the condition that the cost of Rs. 5000/- is deposited on or before 15/12/2017.

In view of this, Petition is allowed. The order dated 23/7/2013 is quashed and set aside. The Petitioner shall deposit cost of Rs. 5,000/- in the Court of Civil Judge, J.D., Kurundwad on or before 3/4

15/12/2017.

Rule is made absolute in the above terms. The petition is disposed of accordingly.

(SMT. SADHANA S. JADHAV,J) 4/4