WP/258/2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.258 OF 2011 Mohd. Yasin Nasiruddin Ansari ... Petitioner V/s. Mohd. Sabir Mohd. Isaque Ansari ... Respondent Mr. Amol P. Mhatre for the Petitioner. Mr. Sandesh D. Patil for the Respondent. CORAM : B.R. GAVAI, J. DATE : 14 TH MARCH, 2011. P.C. : 1. Rule. Rule made returnable forthwith, by consent. 2. By the present Petition, the petitioner challenges the order dated 22nd June, 2010 passed by the Civil Judge, Senior Division, Bhiwandi, Dist. Thane below Exhibit 45A in Special Civil Suit No.496 of 2002, by which the learned trial Judge has directed that the evidence of the Petitioner in the present matter be discarded. 3. The petitioner has filed the Suit for specific performance. The Suit is resisted by the Respondent. When the matter was fixed on 22nd June, 2010, the Petitioner-Plaintiff was present in the Court. However, it appears that the Counsel for the Plaintiff was not present. The learned trial Judge has recorded that the Plaintiff was present in the witness box for some time and thereafter left on his own and thereafter, though repeatedly called, did not come back. WP/258/2011 2 4. In these circumstances, the learned trial Judge has passed the order impugned in the present Petition. 5. The petitioner has specifically averred in the Petition that he had gone to call his Counsel who was in the other Court and as such, such a harsh order ought not to have been passed by the learned trial Judge. 6. Mr. Patil, the learned Counsel appearing on behalf of the Respondent, vehemently opposed the Petition on the ground that the learned trial Judge by taking into consideration the conduct of the Petitioner-Plaintiff has passed the impugned order and as such no interference is warranted. 7. From the record it is clear that the Plaintiff was very much present in the Court when the matter was called out. The contention of the petitioner that he had gone to call his Counsel appears to be correct. In any case when the Plaintiff was present for cross-examination and had gone to call his Counsel, in my view, it did not warrant such a harsh action. I find that, in the interest of justice, the Petition deserves to be allowed. 8. In so far as the prejudice which has been caused to the respondent is concerned, that can be compensated by paying costs. WP/258/2011 3 9. In the result, the Writ Petition is allowed. The impugned order dated 22nd June, 2010 passed by the Civil Judge, Senior Division, Bhiwandi, Dist. Thane below Exhibit 45A in Special Civil Suit No.496 of 2002 is quashed and set aside. 10. The Petitioner-Plaintiff is directed to remain present for recording his evidence on the next date before the trial Court. It is made clear that any unwanted adjournments would not be sought by the Petitioner-Plaintiff. 11. Taking into consideration the fact that the Respondent is a senior citizen, the learned trial Court is directed to expedite the hearing of the Special Civil Suit No.496 of 2002 and decide the same within a period of six months from today. 12. The Writ Petition is allowed with costs to be paid to the Respondent which are quantified at Rs.3,000/-. The costs to be deposited in the trial Court within a period of two weeks from today. On deposit of the costs, the Respondent- Defendant will be at liberty to withdraw the same. The condition of deposit of costs is a condition precedent for allowing the Petition. On failure to deposit costs within stipulated period, the Petition shall stand dismissed. 13. The parties to appear before the learned trial Court on 21st March, 2011. 14. The parties to act on the authenticated copy of this order. [B.R. GAVAI, J.]