1 wp10293.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 10293 of 2010 M/s. Mangal Murti Dev (P) Ltd. ... Petitioner v/s. Saheblal Vishwanath Gupta & anr. ... Respondents Mr. Rohan Sonawane i/b. M.B. Shirsat for the petitioner. Mr. Ramesh Chheda for respondents 1 and 2. CORAM:- B.R. GAVAI, J DATED :- APRIL 15, 2011. P.C. Rule. Rule, made returnable forthwith. 2. Heard. By consent taken up for final hearing. 3. By way of present petition, the petitioner challenges the order dated 21st August, 2008 vide which the learned City Civil Judge has struck out the defence of the present petitioner-defendant. 2 wp10293.10.sxw 4. The suit has been filed by the respondents for specific performance of contract. The suit is resisted by the defendants. 5. In the said suit, the plaintiff was examined and cross-examined. It appears that, however, on subsequent dates when the witness of the plaintiff was present, the petitioner could not cross-examine on the ground that the Senior Counsel engaged on behalf of the petitioner was not available and the junior Counsel has no instructions to cross-examine the witness. It appears that there were some orders passed on subsequent dates. Ultimately vide order dated 21st August, 2010 the order impugned has been passed. 6. Nodoubt when the matter is fixed, it is the duty of the Counsel engaged to remain present and cross-examine the witness who is examined on behalf of other side. Thus no error could be found with the order of the learned trial Court in passing the order. However, I find that on account of absence of Counsel on some dates, such a drastic order ought not to have been passed. In any case, on account of lapse on the part of the Counsel, a litigant should not be made to suffer. In that view of the matter, I am inclined to allow the petition. I further find that instead of foreclosing the 3 wp10293.10.sxw doors of justice on technical ground, the party may be permitted to get the dispute decided in accordance with law. 7. The rule is, therefore, made absolute by quashing and setting aside the impugned order. The petitioner would be permitted to cross-examine the witnesses on behalf of the plaintiff and and also examine the witnesses insupport of its defence. However, it is made clear that no adjournment would be granted at the request of the present petitioners and on the dates fixed by the learned trial Court and when the witness of the plaintiff is present, the Counsel for the petitioner would proceed further with the cross- examination of the plaintiff’s witness and also keep the defendant’s witness available on the dates fixed by the learned trial Court. 8. Taking into consideration the facts and circumstances, the learned trial Court is directed to expedite the hearing of the suit and dispose the same within the period of six months from today. 9. Petition is allowed subject to cost which are quantified at Rs. 10,000/-. The cost be deposited in the trial Court within a period of four weeks from today. On deposit of the cost, the respondents-plaintiffs would 4 wp10293.10.sxw be at liberty to withdraw the same. The deposit of the cost is pre-condition for allowing the petition. (B.R. GAVAI, J)