1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9697 OF 2009 Lalit Mulchand Chheda & Anr. ...Petitioners vs. Ramaben Bhogilal Mehta ...Respondent Mr.V.I.Sanglikar for the petitioners Mr.Santosh Narwade i/b M/s.M.M.Vashi & Associates for the respondent. CORAM :A.S.OKA,J. DATE : FEBRUARY 2, 2010 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent. Considering the narrow controversy involved, this Writ Petition under Article 227 of the Constitution of India is taken up for final hearing. 2 The petitioners are the original plaintiffs and the respondent is the defendant. By order dated 12 th October 2007, the cross examination of the 1 st witness for the petitioners was treated as closed on the ground that the witness did not offer himself for further cross examination. A notice was taken out for setting aside the said order which was dismissed by order dated 21 st November 2007. Thereafter, a fresh application was filed by the petitioners for setting aside the order dated 21 st November 2007 which has been dismissed by the trial Court. A revision application was preferred against the subsequent order which has been dismissed. 3 The learned counsel for the petitioners submitted on a date fixed by this Court, the concerned witness will remain present before the trial Court and will offer himself for cross examination. He submitted that a 2 hyper-technical view has been taken by the Courts below and the petitioner be permitted to lead further evidence. 4 The learned counsel for the respondent submitted that the order dated 21 st November 2007 passed by the trial Court on the interim notice no.904 of 2007 has not been challenged by the petitioners and the order passed on the subsequent notice has been challenged. He submitted that no interference be made with the order of the trial Court considering the conduct of the petitioner. The learned counsel for the petitioner pointed out that paragraph 11 of the Judgment in revision shows that even prayer for setting aside the first order dated 21 st November 2007 was considered and the same was rejected on merits. 5 I have considered the submissions. On 12 th October 2007, an order was passed recording closure of the cross examination of the 1 st witness of the petitioners. The suit was kept for recording of evidence of the defendant. On the very day, an application was made for setting aside the said order by stating the reasons why the witness could not remain present. In fact, in normal course, when an application is made on the same day, the trial Court ought to have allowed the said application unless there was gross negligence on the part of the petitioners. Perusal of the impugned order shows that a very hyper technical view has been taken by the Courts below without considering the fact that the application was made on the same day on which the order dated 12 th October 2007 was passed. In a case like this, the trial Court ought to have allowed the said application and directed the witness to undergo the cross examination. The respondent could have been compensated by ordering payment of costs. A sum of Rs.5,000/- has been already 3 deposited by the petitioner in this Court. 6 Hence, I pass the following order ; i) Impugned orders dated 12 th October 2007 as well as 27 th November 2007 are quashed and set aside. ii)The first petitioner who was under cross examination will remain present before the trial Court on the next date fixed by the trial Court and will offer himself for cross examination. iii)It is made clear that the 1 st petitioner will not be entitled to seek any adjournment on unreasonable grounds. The respondent is permitted to withdraw the amount of Rs.5000/- deposited in this Court by the petitioners towards costs payable to the respondent. iv)Writ Petition is allowed in above terms. JUDGE