*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6624/2009 Sukh Shanti Construction. ..Petitioner -VERSUS- Surya Bhan Singh and others. ..Respondents ............... Mr.B.P. Pandey, Advocate for the Petitioner. Mr.A.K.Singh, Advocate for the Respondent No.1. Mr.M.M.Malwankar, Advocate for the Respondent No.3/BMC. ............... CORAM: A.P.DESHPANDE, J. Dated 12th November, 2009. PC:- 1 Rule. Rule made returnable forthwith. Taken up for final hearing by consent of the parties. Oral prayer to amend the prayer clause of petition is granted. Amendment to be carried out forthwith. 2 The present Writ Petition is filed by the original Defendant No.3. The evidence has commenced in the suit filed by the Plaintiff against the Defendants. The Plaintiff was being examined on commission as the Plaintiff was not keeping good health on account of his advanced age. The Plaintiff is aged about 86 years. The record reveals that one Mr.B.R.Daptare, Assistant Registrar was appointed as Commissioner to record the evidence of the Plaintiff on commission. On 24.02.2007, a part of the cross- examination of Plaintiff was conduced by the Advocate Mr.B.P. Pandey for the Defendant No.3. The said witness was also cross- *2* examined prior thereto. On 24.02.2007, cross-examination could not be completed as the Plaintiff reported that he was not feeling well and was not in position to face the cross-examination. Hence, recording of cross-examination was stopped by the Commissioner and the matter was referred to the Court for further direction. On 28.09.2007, the Trial Court passed an order relieving the Commissioner on the request made by him and thereafter, no Commissioner was appointed to record the evidence. The report of the earlier Commissioner dated 27.09.2007 reveals the reason as to why the Commissioner prayed for relieving and the same is to the effect that the instant suit was transferred to the Court at Dindosi and it was difficult for the Commissioner to attend the work of commission. As stated above, at the request of the Commissioner, the Commissioner came to be discharged. 3 On 18.10.2007, when the counsel for the Defendant No. 3 was absent, the order-sheet records thus: “No further cross- examination of the Defendant No.3 as he is absent. The evidence of the Defendant No.3 stands closed. Adjourned for arguments to 15.01.2008.” What the order-sheet dated 18.10.2007 intends to state is that there shall be no further cross-examination of the Plaintiff by the Defendant No.3 and the cross-examination of the Plaintiff by the Defendant No.3 stands closed. Both the learned counsel appearing for the parties agree to this position so far as recording of the order-sheet dated 18.10.2007 is concerned. The order-sheet dated 18.10.2007 further wrongly adjourned the case for arguments. Assuming that the cross-examination of the Plaintiff by the Defendant No.3 is ordered as closed, still the evidence of the *3* Defendant No.3 is yet to be recorded. The problem has arisen in the present case due to incorrect recording of the order-sheet dated 18.10.2007. Thereafter, the Defendant No.3 moved an application dated 15.01.2008 which is filed on 22.01.2008 praying for recalling the Plaintiff for cross-examination and setting aside the order dated 18.10.2007. On 21.02.2008 the Court rejected the application dated 15.01.2008 by making the observation: “Advocate for the Defendant No.3 submits in support of his application dated 15.01.2008. However, the said application does not survive at this stage as the Plaintiff has not come to the Court to complete his evidence and no Commissioner has been appointed after the period of last Commissioner has expired. In the circumstances, this application is filed.” Thereafter, the Defendant No.3 moved an application at Exhibit-28 again making the same prayer to permit the remaining cross-examination of the Plaintiff. However, the application came to be rejected. Yet again similar attempt was made to seek permission to cross-examine by moving an application at Exhibit-29 and the same also mate with same fate and came to be rejected. Thereafter, Chamber Summons came to be taken out again making the same prayer, but it also came to be rejected. 4 From narration of the above facts it is crystal clear that an erroneous order dated 18.10.2007, which reveals total non application of mind it is recorded that the evidence of the Defendant No.3 is closed. The basic order dated 18.10.2007 which causes utmost prejudice to the Defendant No.3 and which results in denying the right to cross-examine the Plaintiff is wholly unsustainable, however, for no just and proper cause the Defendant *4* No.3 went on making the applications after applications making the same prayer which was turned down on 18.10.2007 and on account of making repeated applications unnecessary time has been wasted. As yet the Plaintiff’s evidence is not over and the Defendants are yet to lead the evidence though by an order dated 18.10.2007 it is recorded that the evidence of the Defendant No.3 stands closed and the matter came to be adjourned for arguments. Neither the evidence of the Defendant No.3 is closed nor the arguments are started and the matter rests where the Commissioner was discharged. The interest of justice demands an opportunity to be made available to the Defendant No.3 to further cross examine the Plaintiff. In my view this would be in furtherance of the cause of justice. No doubt the permission to be granted to the Defendant No. 3 needs to be subject to payment of costs as the Defendant No. 3/Petitioner is responsible for the delay in decision of the suit by making repeated applications making the same prayer. The present Petitioner has almost abused the process of law. 5 In the result, the orders dated 18.10.2007, 21.02.2008, 10.07.2008 (below Exhibit-28), 22.10.2008 (below Exhibit-29) and 23.06.2009 (below Exhibit-33) are quashed and set aside. The Petitioner/Defendant No.3 is granted permission to further cross- examine the Plaintiff. The Trial Court shall appoint the Commissioner forthwith for recording the evidence of the Plaintiff on commission. The cost of commission shall be borne by the Petitioner/ Defendant No.3. 6 The learned counsel for the Petitioner/ Defendant No.3 assures this Court that without further loss of any time and in one *5* sitting he would complete the cross-examination of the Plaintiff. The statement is accepted. 7 After completion of the cross-examination of Plaintiff by the Defendant No.3 the Trial Court shall proceed to decide the suit on merits in accordance with law. 8 This order which grants permission to the Petitioner to further cross-examine the Plaintiff is subject to condition that the Petitioner/ Defendant No.3 pays the Plaintiff the costs in a sum of Rs.10,000/- (Rupees Ten Thousand) within a period of two weeks from today. The payment of costs within the stipulated period is a condition precedent. 9 The proceedings of the suit stands expedited. 10 Rule made absolute in the above terms. 11 The parties to act on an authenticated copy of this order. (A.P. Deshpande, J)