1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8097 OF 2008 Baban Ganpat Tope & Ors. ...Petitioners vs. Bank of Maharashtra & Ors. ...Respondents Mr.V.B.Tapkir for the petitioners Mr.Sachin Joshi for respondent no.1 CORAM :A.S.OKA,J. DATE : AUGUST 11, 2009 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the first respondent. Considering the narrow controversy involved, the petition is taken up for final disposal. 2 The first respondent is the original plaintiff. The first respondent filed a suit for recovery of money. The present petitioners are the legal representatives of the original fourth defendant who died during the pendency of the suit. An application was made by the petitioners at Exh.127 praying for recalling the witness examined by the first respondent-plaintiff. The said application has been rejected by the impugned order. 3 The learned counsel for the petitioners pointed out that the fourth defendant died on 27 th August 2005. An application for bringing the present petitioners on record was filed by the first respondent on 6 th January 2006. The said application was allowed by the order dated 25 th April 2007. He pointed out that the summons of the petitioners was ordered to be served by substituted service. He pointed out that by order dated 25 th March 2008, the trial court permitted the petitioner 2 to file written statement subject to payment of costs of Rs.100/-. His submission is that by setting aside the order directing that the suit will proceed without the written statement of the petitioners,the trial court has permitted the petitioner to defend the suit. Therefore, the learned trial Judge ought to have allowed the subsequent application made at Exh.127. 4 The learned counsel for the first respondent pointed out that opportunities were available to the petitioners to contest the suit. He pointed out that the suit of the year 1993 is still pending and the claim in the suit is for recovery of only a sum of Rs.59,355/- with interest. He submitted that no indulgence be shown to the petitioners. 5 I have considered the submissions. The petitioners were brought on record by order dated 25 th April 2007. It appears that the service of summons to the petitioners was made by publication. On 2 nd November 2007, the trial court passed an order directing that the suit will proceed without written statement of the petitioners. By order dated 25 th march 2008 passed bellow application at Exh.112, the said order was set aside by the trial court and the petitioners were permitted to file their written statement. The present application on which impugned order was passed has been made by the petitioner on 19 th September 2008. Additional compilation produced by the learned counsel for the petitioners shows that the affidavit in lieu of examination in chief of the witness examined by the first respondent was filed in July 2004 and the cross examination of the said witnesses by the Advocate for the original defendant no.5 was completed on 8 th February 2008. As stated earlier, by order dated 25 th March 2008, the petitioners were permitted to file the 3 written statement. So a permission was granted to the petitioner to file their written statement after cross examination of the witness examined by the first respondent was closed. Therefore, the petitioners entitled to one opportunity to cross examine the witness examined by the 1 st respondent. It is true that immediately after 25 th March 2008, the petitioners could have applied for recalling the witnesses examined by the first respondent and the petitioners waited till 19 th September 2008 to make the application at Exh.127. For the said delay, the petitioners will have to compensate the first respondent, but an opportunity to cross examine witness of the first respondent, cannot be denied to the petitioner. The amount of costs is quantified at Rs.3000/-. 6 Hence, I pass the following order : i) Impugned Judgment and Order dated 15 th October 2008 is quashed and set aside. The application at Exh. 127 made by the petitioner is allowed. The trial court will recall Mr.Mrudul Chintaman Joglekar, the witness examined by the first respondent. ii)It is made clear that the petitioners will cross examine the said witness on the date fixed by the trial court and the petitioners are not entitled to seek adjournment on any unreasonable ground. iii)The petitioners are directed to pay costs of Rs. 3000/- to the first respondent within a period of four weeks from today. Payment of costs will be a condition precedent. The deposit of the amount with the trial court within stipulated time will be treated as sufficient compliance with this order. iv)Writ Petition is allowed in above terms. 4 JUDGE