1 WP-4608.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4608 OF 2011 Mr.Harbhajansingh D Kohli : Petitioner versus Mr.Jasbirsingh Amriksingh Sethi : Respondent Mr. P J Thorat for the Petitioner. Mr.Akshay Gosavi & Mr.Nilesh Masurkar for the Respondent. CORAM : R M SAVANT, J. DATE : 14th November 2011 ORAL JUDGMENT : 1 Rule, by consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the Order dated 16/3/2011 passed by the 5th Joint Civil Judge, Senior Division, Pune by which order the Application-Exhibit-40 to pass “No Cross Order” against the Petitioner came to be allowed. The Petitioner is the original Defendant in the Special Civil Suit No.148/2007 filed by the Respondent herein for recovering of the amount of Rs.17,81,000/-. It appears that an affidavit of evidence was filed by the Respondent on 25/11/2008, and thereafter the matter was kept for his cross examination. At about for a period of two years, the Petitioner herein either did not remain present or did not cross examine the Respondent. It is required to be noted that the Respondent herein had filed an Application-Exhibit-38 for clubbing the suit covered by the above Writ Petition as well as Suit Nos.1099 of 2 WP-4608.11.sxw 2006, 1232 of 2006 and 1227 of 2006 filed by the Respondent herein. 3 Whilst the said Application was pending the Respondent herein filed the Application-Exhibit-40 for passing “No Cross Order” against the Petitioner. The said Application was allowed by the impugned order dated 16/3/2011, and consequently the Application Exhibit-38 for clubbing the suits together was also allowed. 4 It is the case of the Petitioner that he is about 71 years of old and is not keeping good health, and in view of the fact that there are various litigations going on between the parties, the Petitioner was labouring under the belief that the Application filed by the Respondent for clubbing the suits would be allowed, and therefore, the Petitioner did not cross examine the Respondent. 5 In my view, one last indulgence ought to be granted to the Petitioner in the light of the fact that the trial Court has clubbed all the suits together. It is trite that a party should be allowed to prosecute its remedy on merits and should not be thrown out on technical grounds. The suit in question has not progressed beyond the evidence of the Respondent. In that view of the matter, the impugned order dated 16/3/2011 is required to be quashed and set aside and is accordingly quashed and set aside. Resultantly, the Petitioner/Defendant would be entitled to cross examine the 3 WP-4608.11.sxw Respondent/Plaintiff. The parties to produce this order in the trial Court, and the trial Court thereafter to fix the matter for cross examination of the Plaintiff which, the learned counsel for the Petitioner states, would be completed by the Defendant, as would be directed by the trial Court. The learned counsel for the Petitioner further states that no adjournment will be sought by the Petitioner/Defendant in the matter of cross examination of the Plaintiff. In my view, it would be just and proper that for the inconvenience caused to him, the Plaintiff has to be compensated suitably. The Petitioner/Defendant therefore to pay costs of Rs.5,000/- to the Respondent/Plaintiff within a period of two weeks from date. Only on the payment of such costs and evidence produced by the Petitioner thereof that the benefit of this order would enure to the Petitioner. In the event the costs are not paid in terms of the aforesaid directions, the above Petition would be deemed to have been dismissed without further reference to this Court. 6 Considering the fact that the various suits have been filed by the Respondent for recovery of amounts from the Petitioner, the learned counsel are ad idem, the suits be expedited. The hearing of the above suits is accordingly expedited. 7 Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs. . [R.M.SAVANT, J]