1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 423 OF 2011 *** 1. Heard Advocate Shri Shirsath for the Petitioner/ original defendant and Advocate Mr. A. S. Deshpande for Respondent/ original plaintiff. 2. By impugned order Court of Civil Judge, Senior Division, rejected application moved by present petitioner for setting aside "no cross" order and to permit her to cross examine witness for Respondent/ bank. 3. Shri Shirsath contends that order of "no cross" was passed on 26th April, 2010 and immediately on that day leave to cross examine was sought but that was rejected on the ground that application was not supported by any reason. On next date i.e. on 12th July, 2010 when leave to cross examine was sought the Respondent/ bank though opposed that application, claimed costs of Rs. 2,000/-. In this background, attention is invited to impugned order to urge that merely 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. because application was filed by counsel belatedly it could not have been rejected. In the alternate, learned counsel states that the petitioner should not be made to suffer for fault on part of her Advocate. He points out that this Court has on 20th January, 2011 while issuing notice in the matter directed petitioner to show her bonafides by depositing amount of Rs.5,000/- and accordingly that amount is already deposited. 4. Shri Deshpande opposes the petition by urging that on each occasion application for setting aside cross examination is filed belatedly so as to see that trial Court is required to adjourn the matter to next date. According to him, there are no bonafides and hence use of discretion by trial Court looking to the conduct of petitioner should not be interfered with by this Court. 5. After hearing both counsel I find that Respondent bank has filed a suit for recovery 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. of amount of Rs.1,66,000/- with interest. On 26th April, 2010 the bank has examined its witness and as the counsel for Petitioner was not present inspite of repeated calls till 01.30 in the afternoon trial Court passed an order of "no cross". After this order of no cross was passed on 26th April, 2010 th3e petitioner move application at Exhibit-38 and sought leave to cross examine the witness. After noting reason, already given by it in its earlier order, the trial Court found that there was no reason given for absence in first half and, therefore, rejected that application. On 12th July, 2010 another application Exhibit-39 was moved mentioning that counsel for petitioner/ defendant had gone out of station on 26th April, 2010 and hence came to Court itself late. The application was opposed by Respondent/ Bank but then they mentioned that its witness is coming from a far off place and, therefore, 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the trial Court should grant it costs of Rs. 2,000/-. By impugned order that application has been rejected. 6. In this situation, though on 26th April, 2010 application for leave to cross examine was filed belatedly, it appears that counsel for the petitioner/ defendant was himself not in Court in first half. On 12th July, 2010 the application was tendered but then it was not seriously opposed and witness for bank was very much available and bank claimed expenditure of Rs.2,000/-. Trial Court noticed that witness was present but then application at Exhibit-39 came before it in second half, the application could have been moved at 11.00 a.m. itself and there was no explanation as to why it could not be done. 7. In this situation, as petitioner/ defendant has already deposited amount of Rs. 5,000/- with trial Court I find that interest of justice would be met by permitting the 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Respondent/ bank (plaintiff before the trial Court) to withdraw that amount as its costs and to produce its witness for cross examination of petitioner/ defendant on next date of hearing. The petitioner shall instruct her counsel to conduct cross examination on that day without fail. In case of any difficulty, petitioner shall also make arrangement for alternate counsel so as to avoid any undue adjournments. The trial Court shall permit the counsel / alternate counsel of petitioner to conduct cross examination of witness for plaintiff/ bank on that day. 8. Subject to this, the impugned order dated 12th July, 2010 passed below Exhibit-39 is quashed and set aside and prayer made in Exhibit-39 is granted. Petition is thus allowed. [B.P.DHARMADHIKARI, J.] Dated:22/03/2011. ans/423