1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2468 OF 2009 Mr.Kishore R.Padwal. ..Petitioner. V/s. Mr.Rameshwar B. Vishwakarma & Anr. ..Respondents. Ms.Kokila Kalra for petitioner. Mr.R.M.Patne, AGP for Respondent No.2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the Petitioner. 2. During the course of argument, learned Counsel has submitted that the Petitioner intends to challenge two separate orders by this one Petition. The first order is dated 26th November, 2008. Second Order is dated 2nd February, 2009. 3. Insofar as the Order dated 26th November, 2008 is concerned, the same is founded on the order passed by this Court in Writ Petition No.7029 of 2008 dated 22nd October, 2008. In that sense, no fault can be found with the said order. My attention is invited to order dated 6th January, 2009 passed by 2 the Trial Court at page 63 to contend that by this Order, the Lower Court has undone what this Court had directed to do and was in fact done by the Predecessor on 26th November, 2008. This argument does not commend to me. The issues which have been recasted by the Trial Court, in no manner are inconsistent with the issues ordered to be framed by this Court. Two issues are recasted on 6th January, 2009. The only change that can be discerned from the said issues is that the word "lawful" has been inserted in issue No.1. That, in my opinion, does not change the tenor of the issue suggested by this Court in its order dated 22nd October, 2008. 4. In addition, by the impugned Order dated 6th January, 2009, the Trial Court has additionally recasted the issue No.3 as to whether the Plaintiffs is entitled to perpetual injunction ? Once again, no fault can be found with framing of the said issue. Accordingly, the grievance regarding recasting of issue by the lower Court is inappropriate does not hold good. 5. The next grievance of the Petitioner is with regard to the Order passed by the Trial Court of no cross against the Petitioner/Defendant. The 3 background in which the said order has been passed can be discerned from the order passed below Exh.16 at page 72. The said Application was filed by the Advocate for the Defendant without giving any tangible ground for adjournment. The said application has been rejected by the Trial Court. It is thereafter, the Trial Court insisted to proceed with the matter, when the advocate for the defendant refused to cross-examine the witness. The argument before this Court is that the advocate never refused to cross-examine the witness to ask for time. That does not take the matter any further. If the defendant’s request of adjournment is rejected on the finding recorded by the Trial Court that no tangible reason was forthcoming, the Trial Court was justified in insisting that the defendant should proceed with the cross-examination. If the advocate for the defendant failed to do so, the Court cannot be blamed for having recorded that the defendant refused to cross-examine the witness, hence, no cross. 6. Counsel appearing for the Petitioner contends before this Court that the Defendant’s advocate was always ready and willing to proceed with the cross-examination. However, this Court is bound by the fact recorded by the lower Court in its order 4 dated 2nd February, 2009 that the Defendant refused to cross-examine the witness. If the Petitioner has any grievance about correctness of the recording of that fact, such grievance, it is well established, will have to be made only before the same Court and cannot be the ground to challenge such order before the superior Court. If the Petitioner, is so advised, may approach the Trial Court for appropriate relief, which application be considered on its own merit. 7. Petition disposed of accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)