1 wp772.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 772 OF 2006 Dena Bank, A body Corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970, and having its Head Office at Dena Corporate Centre, Bandra-Kurla Complex, Bandra (East), Mumbai 400 051 and a Branch Office at Navi Peth, Jalgaon, through its Branch Manager. PETITIONER -VERSUS- 1. Vidhyawasini Medical & General Stores, through its Proprietor, Shri. Dineshkumar Durgaprasad Chaurasiya Shop No. 10, `Krishak-Bhavan' Opp. `Shiv-Tirth Maidan', Shivaji Chowk, Jalgaon, Dist. Jalgaon. 2. Shri. Dineshkumar Durgaprasad Chaurasiya Age : 35 years, Occ : Medical Shop, R/o Shop No.10, `Krishak-Bhawan', Opp. `Shiv-Tirth Maidan', Shivaji Chowk, Jalgaon, Dist. Jalgaon. 3. Shri. Durgaprasad Rameshvar Chaurasiya, Age : 58 years, Occ : Business, R/o Shop No.10, `Krishak-Bhawan' Opp. `Shiv-Tirth Maidan', Shivaji Chowk, Jalgaon, Dist. Jalgaon. 4. Shri. Ghisulal Mohanlal Warma Age : 40 years, Occ : Saraf, R/o `Vidya', Plot No.2, Ganpati Nagar, Jalgaon, Dist. Jalgaon. RESPONDENTS ...... Shri S.V. Adwant, advocate for the petitioner ...... 2 wp772.06 CORAM : S.V. GANGAPURWALA, J. DATE : 28th November , 2011. ORAL JUDGMENT : 1. Rule. Rule returnable forthwith. 2. This Court had issued notice to the respondents on 1st February, 2006. The respondents are served but are absent. In the morning session when the matter was called out, none appeared for the respondents, therefore, the matter was kept in afternoon session. In the afternoon session, when the matter was called out, none appeared for the respondents. 3. The petitioner, who is original plaintiff has filed the suit for recovery of amount against present respondents. The petitioner had led its evidence. The witness of the plaintiff was under cross examination on the adjourned date. The witness did not turn out, as such the plaintiff filed an application seeking an adjournment. Trial Court rejected the said application Exhibit-55 and directed the matter to proceed further according to law. The said order is impugned in the present Petition. 4. Shri Adwant, learned Counsel for the petitioner submits that 3 wp772.06 the petitioner is a public financial institution. A witness of the plaintiff who was under cross examination, could not attend the Court due to personal reasons. The daughter of the said witness was indisposed and as such, the witness could not attend. The learned Trial Judge has taken very hyper technical approach. 5. With the assistance of the learned Counsel, I have gone through the proceedings. It seems that three times the adjournment was sought. The witness did not remain present. The plaintiff has stated the grounds seeking adjournment. The plaintiff would not gain by the delay as it is plaintiff's suit for recovery of amount. For the reasons stated, the Court below could have granted one more opportunity to the petitioner. It is always in the fitness of things to get the matter adjudicated on merits. The petitioner is a public financial institution. In the present case, witness is at Nagpur and from there witness has to come. It is stated that the daughter of the said witness was indisposed. There is nothing to disbelieve the said reason. 6. In view of the above, the impugned order is quashed and set aside and the application Exhibit-55 is allowed. The petitioner shall keep the witness present on the next date. It is informed by Shri Adwant, learned counsel for the petitioner that the next date 4 wp772.06 fixed by the trial Court is 15th December, 2011. The petitioner shall keep the witness present so as to enable the defendants to cross examine the said witness. 7. The respondents herein, who are the original defendants, are absent. In case, the defendants do not appear on 15.12.2011 before the trial Court, then the Trial Court should issue notices to the defendants as the matter is stayed by this Court for more than five years. 8. Rule made absolute in the above terms. However, there shall be no order as to costs. [S.V. GANGAPURWALA] JUDGE ga s/wp 772.06