1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10553 OF 2009 Mubarak Shaukat Jamdar Petitioner versus Yadrav Grampanchayat, Yadrav through its Sarpanch Respondent Vijay Killedar for petitioner. CORAM : A.S.OKA, J. DATE : 11th March 2010 PC : 1. Learned counsel for the petitioners states that the affidavit of service has been filed disclosing that the private notice in terms of order of 4th January 2010 has been duly served to the respondent and acknowledgement signed by the respondent has been annexed to the affidavit. 2. The petitioner is the original plaintiff and the respondent is the defendant. With a view to appreciate the controversy in the petition it will be necessary to refer to the facts of the case in brief. On 25th July 2007 the petitioner filed an affidavit in lieu of examination-in-chief in the suit. Applications were made by the respondent on 3.8.2007 (Exhibit-44), 27.11.2007 (Exhibit-45) and on 18.1.2008 (Exhibit-46) seeking adjournment for cross examining the petitioner. On 5.2.2008, when the 2 case was fixed for cross examination of the petitioner, the parties and advocates were absent and, therefore, cross examination was closed by passing an order on the same day. On 17.6.2008, an order was passed recording that the plaintiff and his advocate were absent. The Court, therefore, proceeded to close the evidence of the petitioner. On 24.6.2008 an application was made for framing additional issue. The said application was made by the petitioner. The said application was allowed by the Trial Court. An application was made by the petitioner at Exhibit-52 praying for setting aside the earlier orders. By the said application the petitioner offered himself for cross examination. By the impugned order, the said application has been rejected. 3. After having heard learned counsel for the petitioner, I find that considering the facts of the case, the Trial Court ought to have adopted a liberal approach. After filing affidavit in lieu of examination-in-chief, the petitioner remained present for the purposes of his cross examination. However, adjournments were sought on three occasions by the respondent. Thereafter, when the petitioner was absent, the Trial Court closed the cross examination and even further evidence of the petitioner. Considering the fact that at least on three dates the petitioner was present, and the evidence could not be recorded due to absence of the respondent, the application at Exhibit-52 ought to have been allowed by the Trial Court by giving liberty to the petitioner to lead his own evidence. The petitioner has offered himself for cross examination by making said application. 3 4. Hence, I pass following order :- A) The impugned order is quashed and set aside and application at Exhibit-52 is allowed; B) The petitioner will be permitted to lead further evidence subject to condition that he will offer himself for cross examination by the defendant; C) The writ petition is allowed in above terms with no order as to costs. (A.S.OKA, J.)