1 wp5416.10.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5416 OF 2010 Smt. Mandakini Bhaskar Kadam & ors. ..Petitioners. Vs. Smt. Vandana Anil Kadam & Anr. ..Respondents. Mr. Samir A. Vaidya, advocate for petitioners. Mrs. Archana K. Shirsekar, advocate for Respondent No.1. CORAM : B.R.GAVAI, J. DATE : MARCH 10, 2011. P.C. 1. Rule. Rule made returnable forthwith. Heard by consent. 2 By way of present Petition, the Petitioners challenge the order dated 23 rd March, 2010, vide which, the learned City Civil Court, Dindoshi has forfeited the right of the present Petitioners to cross-examine the witness of the Plaintiff. 3 Mr. Vaidya, learned Counsel appearing on behalf of the Petitioners 2 wp5416.10.sxw submits that though the Petitioners and their counsel were regularly attending the court on several dates, the matter could not be heard, as the Learned Judge was not available. He submits that on the date in question, the junior of the Counsel appearing on behalf of the Petitioners was present and had sought an adjournment. He submits that by denying the same, the learned Judge has erred in law. 4 Mrs. Shirsekar, learned Counsel appearing on behalf of the Respondent No.1 on the contrary submits that the attempt of the Petitioners is nothing else, but to harass the Respondent, who is a widow and required to work in private firm for her livelihood. She submits that no interference is warranted. 5 No doubt that no error could be noticed in the order passed by the learned trial Court, inasmuch as, the learned trial Court has found that on 4 th November, 2009 and 7 th December, 2009, the Petitioners were given last chance to cross-examine the Plaintiff’s witness. Even thereafter, on 4 th March, 2010, 18 th March, 2010 and on the date on which 3 wp5416.10.sxw the order was passed, the Petitioners have not cared to cross-examine the witness of the Plaintiff. However, I find that since the dispute is between the family members, instead of closing the doors of justice on the technical ground, it would be appropriate to relegate the parties before the trial Court to decide the controversy on its own merits. 6 In that view of the matter, the impugned order dated 23 rd March, 2010, thereby forfeiting the right of the Petitioners to cross-examine the witness of the Plaintiff is quashed and set aside. The Petitioners would be permitted to cross-examine the witness on the next date, that is fixed by the learned trial Court provided witness is available for cross- examination. 7 It is made clear that the learned trial Court will not grant any adjournment to the defendants on any unnecessary ground including ground that the Counsel is busy in High Court. 8 The Petition is allowed, subject to costs payable by the Petitioners 4 wp5416.10.sxw to the Respondent Nos. 1 and 2. The costs are quantified at Rs.3,000/-. The costs will be deposited in the trial Court within a period of three weeks from today. On deposit of costs, the Respondent Nos. 1 and 2 would be at liberty to withdraw the same. Deposit of costs is a condition for allowing this Petition. On failure to deposit the costs within aforesaid period, the Petition shall stand dismissed automatically. 9 Rule is made absolute on the above terms. [ B.R.GAVAI, J ]