1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6007 OF 2009 Navshakti Construction .. Petitioner versus Bhima Sahakari Sakhar Karkhana Ltd & Ors. .. Respondents Mr.N.P.Shimpi for the petitioner. Ms.Meena Doshi for the respondents. CORAM : A.S.OKA, J. DATE : 24th September 2009. P.C.: . Notice for final disposal has been already issued. Heard learned counsel for the parties. The petitioner is the original plaintiff. The respondents are the defendants in a suit filed in the year 1990. The recording of evidence of the first witness of the 1st respondent commenced on 18th December 2004. on 20th June 2009, when the advocate for the petitioner was absent, the cross-examination of the witness was ordered to be closed. Thereafter, an application was moved by the petitioner at Exhibit 312 for setting aside the order of “no cross” and for grant of permission to cross-examine the said witness. By the impugned order, the said application has been rejected. 2. The learned counsel appearing for the petitioner invited my attention 2 to roznama of the proceeding of the suit and submitted that only the petitioner cannot be blamed for delay. He submitted that there was sufficient ground made out in application under Exhibit 312 for setting aside the order. The learned counsel appearing for the 1st and 2nd respondents opposed the petition by pointing out that the suit is dragging on from the year 1990. She pointed out that the recording of the evidence of the first witness of the 1st respondent is commenced on 18th December 2004 and on valid grounds the learned trial Judge closed the evidence of the said witness. She submitted that the grounds in application at Exhibit 312 are totally unacceptable and the learned trial Judge by taking overall view of the matter has rightly rejected the application. 3. I have carefully considered the submissions. The evidence of one Rashid Mohammad Mulani, the first witness of the 1st respondent was firstly recorded on 18th December 2004 and thereafter from time to time further examination-in-chief of the said witness was recorded. On 15th April 2005, recording of examination-in-chief was adjourned as the Court time was over. Thereafter, the recording of further examination-in-chief resumed on 1st December 2008. Even in the impugned order, the learned trial Judge has not blamed the petitioner for this delay and in any case, the petitioner cannot be blamed in as much as what was in progress was the recording of examination-in-chief of first witness of the 1st respondent. The recording of examination-in-chief was completed on 5th March 2009. On that day, an application was made by the advocate for petitioner seeking adjournment for 3 cross-examination. The suit was adjourned to 12th March 2009. On that day, the advocate for petitioner and the petitioner were present but none appeared for the 1st respondent. The suit was adjourned to 9th April 2009 on which date an application made by the petitioner’s advocate for adjournment which was granted. On 20th June 2009, the advocate for petitioner applied for time on the ground that the petitioner was not present. The said application was rejected and the cross-examination of the witness was closed. On the very day, the 1st respondent closed its evidence by filing a pursis. Immediately, on the next date i.e 29th June 2009 the petitioner applied for setting aside the order of no cross. The reason given is that the proprietor of the petitioner is a senior citizen. It is stated that he is a resdient of Pune and the suit is pending in the Civil Court at Solapur. It is stated that due to physical ailments, he could not come out of his residence and travel upto Solapur. The perusal of the impugned order shows that learned Judge has merely stated that the suit is of the year 1990 and the petitioner was well aware of the facts and documents on which witness was to be cross- examined. The learned Judge observed that for that purpose the petitioner had sought number of adjournments. 4. The perusal of the roznama shows that the recording of examination- in-chief re-commenced on 8th December 2008. On 15th December 2008, the suit was adjourned though both the parties were present. On 19th January 2009 though the petitioner was absent, an application for adjournment was made by the 1st respondent. Even on 5th February 2009 and 24th February 4 2009 the examination-in-chief could not be completed as the advocate for 1st respondent applied for adjournment. As stated earlier, on 5th March 2009 the examination-in-chief was completed. On the next date i.e on 12th March 2009 the defendants remained absent. On 20th June 2009, when order of no cross was passed, the advocate for petitioner was present. He sought time on the ground that the petitioner was absent and his assistance was required for the purposes of cross-examination looking to the technical nature of the dispute between the parties. 5. The petitioner cannot be blamed for delay in disposal of the suit. The recording of evidence of the first witness of the 1st respondent was adjourned even on account of adjournments sought on behalf of the 1st respondent. The learned trial Judge has adopted a hyper technical view. The learned trial Judge ought to have allowed the application by saddling the petitioner with costs. Hence, the petition deserves to be allowed. The amount of costs is quantified at Rs.7,500/-. 6. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 29th June 2009 is quashed and set aside. The application at Exhibit 312 made by the petitioner is allowed subject to petitioner paying costs of Rs.7,500/- to the 1st respondent within a period of six weeks from today. (b) Payment of costs will be condition precedent. 5 (c) The trial Court will recall the witness Mr.Rashid Mohammad Mulani, (the first witness examined by the 1st respondent) for further cross-examination by the petitioner. (d) Notwithstanding the evidence closure pursis filed by the respondents, it will be open for them to lead further evidence in support of their case. (e) As the suit is of the year 1990, hearing of the suit is expedited. (A.S.OKA,J)