Mohan Dattu Pawse v. Balaram Dattu Pawse Decd Thru Lhrs And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5970 OF 2025 Mohan Dattu Pawse ...

Petitioner V/s.

Balarum Dattu Pawse and Ors.

...

Respondents ------------------- Mr. Pravin Desai, for the petitioner.

Mr. Uzair Kazi I.by YMK Legal, for the respondent nos. 1(i) to 1(c), for the respondent no. 2.

-------------------- VARSHA DEEPAK GAIKWAD

CORAM

:

N.J. JAMADAR, J.

DATE :

8th MAY 2025.

VARSHA DEEPAK GAIKWAD Date: 2025.05.13 13:30:47 +0530 PC:

1.

Heard learned counsel for the parties.

2.

The challenge in this petition is to an order dated 1st February 2025 passed by the learned Civil Judge, Kalyan, whereby an application preferred by the defendant no. 1 to set aside an order foreclosing the right of the defendant no. 1 to lead evidence came to be rejected.

3.

The learned Civil Judge was of the view that, the defendant no. 1 and other defendants were adopting dilatory tactics to delay the disposal of the suit.

4.

From the perusal of the impugned order, it appears that the right of the defendant to lead evidence was foreclosed on 19th September 2024. On 26th September 2024, the petitioner filed an application for

adjournment, and, the instant application to set aside the order dated 19th September 2024 and lead the evidence came to be filed on 11th December 2024.

5.

Evidently, the trial in Special Civil Suit No. 182 of 1999 has been delayed in some measure on account of acts and conduct attributable to the defendants. Nonetheless, the fact remains that, within a short period, the petitioner /defendant no. 1 has moved an application to recall the order foreclosing the right of the defendant no. 1 to lead evidence. The said application was accompanied by the affidavit in lieu of Examination-in-Chief of defendant no. 1.

6.

In this view of the matter to advance the cause of substantive justice, it may be expedient to provide an effective opportunity to adduce evidence to the defendant no. 1.

7.

Learned counsel for the defendant no. 1, submitted that defendant no. 1 will not examine any further witnesses, in his defence. 8.

The aforesaid statement is accepted.

9.

Thus, the petition deserves to be allowed subject to certain conditions.

10.

Hence, the following order:

ORDER

i) Petition stands allowed.

ii) The impugned order dated 1st February 2025 stands quashed and set aside. The application to recall the order foreclosing the right of

defendant to lead evidence, stands allowed.

iii) Order dated 19th September 2022 passed by the Trial Court stands set aside.

iv) The petitioner/defendant no. 1 is permitted to file affidavit in lieu of Examination in Chief, subject to following conditions: a) The petitioner/defendant no. 1 shall pay costs of Rs. 20,000/- to the plaintiff.

b) The defendant no. 1 shall not seek any adjournment. c) The defendant no. 1 shall make himself available for cross-examination and shall not seek any adjournment for the said purpose.

d) Otherwise also, defendant no. 1 shall not seek any adjournment during the further trial of the said suit. f) The costs be paid within a period of three weeks from the date of uploading of this order.

The petition stands disposed.

(N.J. JAMADAR, J)