KBP 7059-08.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7059 OF 2008 Subhash Tipanna Nelge ..Petitioner Vs. Shri Shantaram Shankar Gawde and ors. ..Respondents ......... Mr.R.M.Haridas, for petitioner. Ms.J.V.Kanade, for respondents. ......... CORAM : A.S.OKA, J.. DATE : 24 th August, 2009. P.C. : 1] Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. 2] By this writ petition under Article 227 of the Constitution of India, the petitioners have taken an exception to the orders dated 1 st August, 2008, 18 th August, 2008 and 5 th September, 2008 passed by the trial court. 3] The petitioner is the original plaintiff in a suit for specific performance filed by him against the respondents. According to the case of the petitioner, he filed his own affidavit in lieu examination-in-chief as well as affidavit in lieu of examination-in-chief of witness Mr.Bora. According to the petitioner, on 1 st August, 2008 said witness could not remain present. Therefore an application for adjournment was moved before the trial court. The said application has been rejected. Evidence of the petitioner came to be closed. Thereafter, another application was made by the petitioner. In the said application, a prayer was made for setting aside the earlier order dated KBP 7059-08.doc 2 1 st August, 2008 passed below Exhibit 108 and for grant of permission to lead the evidence. The said application was also rejected by the trial court. Thereafter, an application at exhibit 110 was moved by the petitioner. The said application moved by the petitioner was signed by the said witness showing willingness to depose before the Court. In the said application the petitioner stated that he was desirous of examining one Lalchand Nahar as a witness. An affidavit in lieu of examination-in-chief of the said witness was tendered along with the application. It is stated that the application was signed by the said Lalchand Nahar for showing readiness and willingness to depose before the Court. The said application at exhibit 110 was rejected by the trial court the order dated 5 th September, 2008, by observing that the conduct of the petitioner was such that he is not entitled to seek the relief and the petitioner was negligent. 4] The learned counsel for the petitioner submitted that as a result of the impugned orders, the petitioner has been prevented from adducing evidence in support of his case. He submitted that a very harsh view has been taken by the trial court. The learned counsel for respondents placed on record a compilation containing various documents. The learned counsel for the respondents submitted that from time to time the petitioner has been seeking adjournment. She placed reliance on order dated 30 th July, 2007, as well as orders passed on applications at exhibits 97,98,102,103. Her submission is that considering the repeated adjournments sought by the petitioner and the conduct of the petitioner, the trial court was right in observing that the petitioner was negligent. 5] I have carefully considered the submissions. From the additional compilation filed by the learned counsel for respondents it does not appear that the petitioner has prosecuted the suit diligently. However, it must be noted that the petitioner had filed an affidavit in lieu of examination-in-chief of KBP 7059-08.doc 3 one Mr.Bora. Along with the application exhibit 110, the petitioner had filed an affidavit in lieu of examination-in-chief of another witness Mr. Nahar. Both the witnesses were present in the Court when the application at exhibit 110 was filed on 18 th August, 2008. The witnesses showed willingness to depose before the court. When the witnesses were present before the Court, a permission ought to have been granted by the trial court to the petitioner to examine the said witnesses. The prejudice which may be caused to the respondents could have been compensated by ordering payment of costs. 6] Therefore, in my view, an opportunity deserves to be granted to the petitioner to examine the said witnesses. In fact the impugned order itself notes that the witnesses were present but they could not be examined as the advocate appearing for the petitioner did not appear till 4:30 p.m. The petition deserves to be allowed subject to payment of costs of Rs.7,500/-. The petitioner will be have to keep his witnesses present before the trial Court on the date and time fixed by the trial court and no further adjournments in that behalf will be granted. 7] Hence, I pass the following order: (a) The impugned orders are quashed and set aside and the application made by the petitioners exhibit 110 is allowed. (b) The petitioner shall keep his witnesses namely Mr. Swaroopchand Bora and Mr. Lalchand Nahar present before the trial Court on the date and time fixed by the trial court. It will be the responsibility of the petitioner to procure their presence and adjournment will not be granted to the petitioners on the ground that the witnesses are absent. KBP 7059-08.doc 4 (c) The amount of costs has been paid by the petitioner to the respondents by a demand draft. The demand draft has been accepted by the learned counsel for respondents without prejudice to the rights and contentions of the respondents. (d) The trial court will permit the respondents to file additional/further affidavit in lieu of evidence of their witnesses. (e) Writ petition is allowed in the above terms. ( A.S.OKA, J. )