1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH:NAGPUR WRIT PETITION NO.1101/2010 HASANRAO ABARAO DESHMUKH VERSUS BALMUKUND HARIPRASAD DUBE =================================================== CORAM: SMT. VASANTI A. NAIK, J. DATE:11.1.2011. ORAL ORDER By this writ petition the petitioner impugns the order passed by the trial court on 21.8.2009 rejecting an application filed by the petitioner below Exhibit 148 and partly allowing the application at Exhibit 147 and permitting the petitioner to cross-examine the witness of the defendant on the same day i.e. on 21.8.2009. The petitioner is original plaintiff and the respondents are the original defendants. In a suit filed by the plaintiff for declaration and permanent injunction, the issues were framed and the plaintiff examined three witnesses including the plaintiff. After the cross-examination of these three witnesses, the evidence on the plaintiff's side was closed and the defendants were examined. When the matter was posted for cross-examination of one of the witnesses of the defendants, the petitioner filed an application for examination of two more witnesses, vide exhibit 148 on 21.8.2009. The trial court by the impugned order dated 21.8.2009 dismissed the application filed by the petitioner for permission to examine two more witnesses. On 18.8.2009, since the petitioner was not inclined to examine the witness of the defendants, the trial court had passed an order of “no cross” and on an 2 application filed by the petitioner for setting aside the order, the trial court had set aside the order dated 18.8.2009 of “no cross” on the condition that the plaintiff examined the defendant's witness on 21.8.2009. The petitioner is impugning the orders dated 21.8.2009 by this petition . It is the case of the petitioner in paragraph 7 of the writ petition that the witness who was sought to be examined on behalf of the petitioner/ plaintiff was an old person and was suffering from illness and hence he was not brought to the court at an earlier stage and in such circumstances, the plaintiff sought for the examination of two more witnesses on behalf of the plaintiff. I have perused the application filed by the plaintiff on 21.8.2009 seeking permission to tender oral evidence of a witness to be examined on behalf of the plaintiff. It is stated in the application dated 21.8.2009 that the plaintiff is an old person and he was ill and therefore, he was unable to remain present before the court. The statement of fact made in the application dated 21.8.2009 is contrary to the averment made in the paragraph 7 of the writ petition, wherein it is stated that the witness was an old person suffering from illness. It is also necessary to note that there is no reason whatsoever much less any cogent reason stated by the petitioner in the application dated 21.8.2009 for seeking permission to examine the witness at a stage when defendant's witness was being cross-examined. The trial court rightly held that the reasons stated in the application do not appear to be genuine, specially when the application was not supported by any medical certificate. The trial court rightly held that the application was devoid any substance as ample opportunity was afforded to the petitioner to examine the witnesses and the petitioner had no right to lead evidence at the stage when the defendant's witness was being cross-examined specially 3 when exceptional circumstances were not made out in the application for seeking permission to examine the plaintiff at that stage of the proceedings. The court was also justified in setting aside the “no cross” order dated 19.8.2009 subject to the condition that the petitioner/ plaintiff cross- examinee the witness of the defendant on the very same day. Shri Zoting, the learned counsel for the petitioner states that the matter is listed before the trial court on 18.1.2011 and in such circumstances, since the order dated 21.8.2009 was challenged before this court, the petitioner may be permitted to cross-examine the defendant's witness on the said date of hearing. The request made on behalf of the petitioner is just and reasonable and hence the petitioner is permitted to cross-examine the witness of the defendant on 18.1.2011 itself. There is no reason to interfere with the orders passed by the trial court on 21.8.2009 in exercise of the writ jurisdiction. The petition is disposed of in the aforesaid terms with no order as to costs. JUDGE SMP.