1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6711 OF 2009 Sunil Vitthal Jadhav .. Petitioner/s Versus Shamji Shankar Gawali ..Respondent/s --- Mr. Rohit S. Sarvadnya Advocate for the petitioner Mr. P.B. Kakade, holding for Mr. Gadiwan Advocate for respondent. CORAM : B.R. GAVAI ,J. DATE : 9th December, 2009. ORAL ORDER :- 1] By way of present petition, the petitioner challenges the order dated 27th March, 2008, by which “No cross” order came to be passed and the order dated 16th December, 2008, vide which the application filed by the present petitioner for setting aside the “No Cross order” is rejected and the order dated 4th August, 2009, thereby rejecting the application filed by the present petitioners, for review of the earlier orders. 2 2] The respondent/plaintiff has filed a suit against the present petitioner for recovery of possession. It is the contention of the plaintiff that the defendant was put in possession of the suit property in pursuance of an agreement and since the defendant committed breach of the terms of the agreement, the plaintiff was entitled for recovery of possession. 3] It appears that in the said suit, after the evidence on behalf of the plaintiff was led, the matter was kept for cross-examination of the witnesses of the plaintiff by the defendant. However, since on 27th March, 2008, a no instruction pursis came to be filed by the counsel for defendant, an order of “no cross” came to be passed on the same day. Accordingly, an application came to be filed for setting aside the same. The said application is rejected vide order dated 16th December, 2009. Thereafter, an application for seeking review of the order was filed, which also came to be rejected vide order dated 4th August, 2009. Hence, the present petition. 4] Shri Sarvadnya, learned counsel for the petitioner submits that the petitioner was diligent in contacting the lawyer, but the counsel had filed a “No instruction pursis”. He submits that after that, the petitioner changed his lawyer and after change of lawyer, it was found necessary to file an application for setting aside the “No Cross” order. He further submits that for a mistake on the part of a lawyer, a litigation should not suffer. In support of this submission, he relies on the judgment of the Apex Court in the matter of 3 “Smt. Lachi Tewari Vs. Director of Land Records and others “ reported in 1994(Supp)SCC 431 and the judgment of the learned single Judge in the case of “Ashok Ravji Vadodriya Vs. Municipal Corporation of Greater Bombay “ 2003(3) Mh.L.J. 1003, and the judgment of the Apex Court in the matter of “Rafiq and another Vs. Munshilal and another “ reported in (1981) 2 SCC 788. 5] Shri P.B. Kakade, holding for Mr. Gadiwan, for the respondent on the contrary submits that the petitioner has been defending his case in a casual manner. Though several adjournments were granted, no steps were taken for cross examination of the witnesses of the plaintiff and as such, no interference is warranted with the impugned order. He further submits that since the petitioner is in illegal possession of the suit premises, every attemtp has been made to protract the litigation, so as to deprive the respondent of his right to seek possession of the property. 6] No doubt, that the reliance placed by the learned counsel for the petitioner on the aforesaid 2 judgments of the Apex Court was well placed. In the aforesaid cases, the Honourable Apex Court has held that the obligation on the parties is to select an advocate, brief him, pay his fees demanded by him and then trust the lawyer to do the rest of the things. It has been observed that after having engaged an advocate, the party has neither to go to the High court to enquire with regard to his matter nor and inform him when it is listed. It is no part of his job. However, it is also to be noted that the party who is not diligent enough and careless in the court proceedings, 4 should not be given advantage, to the disadvantage of a litigant, seeking redressal of his grievance from the court. In the present case, the petitioner who is enjoying possession on the basis of an agreement of sale and who, according to the plaintiff, has not complied with the terms and conditions, is enjoying the suit property. In this situation, a tendency to protract the litigation cannot be ruled out. In any case, when a specific query was put to the petitioner as to what steps he has taken against the lawyer, who has filed the “no instruction pursis” though the lawyer was duly instructed, even till today the petitioner has not stated as to what steps are taken against the lawyer. On the contrary, the petitioner who is personally present in the court, through his counsel, informs the court tht he does not propose to take any action against the lawyer. If according to the petitioner, it is on account of a mistake or error committed by the lawyer whether deliberate or not the “No Cross” order is passed, then, he should not have any fear to take the proceedings against the lawyer. In any case, the contention that the delay in filing the application for setting aside “No cross” was on account of change in lawyer is also not fortified from the record. The Roznama would show that on 27th March, 2008, the witness of the plaintiff was present. On the said date, “No instruction pursis” was filed by the counsel for the petitioner. As such, “No Cross” order came to be passed. On the very next date i.e. on 11th April, 2008, the new counsel, namely Shri Bhande, was engaged on behalf of the present petitioner. Thereafter, the matter was adjourned on 15 occasions till 10th December, 2008. On these dates, the new counsel sought various 5 adjournments for arguing the matter. It is thus clear that even after the matter was adjourned on 15 dates, after the “No cross” order was passed and even though a counsel was engaged, no steps are taken by the present petitioner for seeking to set aside the “No Cross” order. It is only on 10th December, 2008, that an application for setting aside the “No Cross” order came to be filed, which is rejected on 16th December, 2008. 8] Under these circumstances, it could not be said that the discretion exercised by the learned trial court has been exercised in a perverse manner. Granting any indulgence to the petitioner even at this stage would be giving a premium to him for his delaying tactics and protracting the decision of the suit. In that view of the matter, I do not find that any interference in the present case, in the extraordinary jurisdiction under Article 227 of the Constitution, is warranted. Hence, writ petition is rejected. [B.R. GAVAI,J.] Grt/-