1 wp7664.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7664 OF 2010 M/s.The Oriental Insurance Co.Ltd. ...Petitioner vs. Shantibhai Naranjibhai Patel ...Respondent Ms Anita Castalino i/b Mr.R.V.Samuel for the petitioner Mr.Dipen Furia for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 12, 2010 P.C.: 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. Considering the nature of the controversy involved in the petition, the same is taken up for final hearing at admission stage. 2 The respondent is the original applicant who filed an application for grant of mesne profit by invoking Rule 12 of Order XX of the Code of Civil Procedure,1908. Earlier, an order was passed in the said application by the trial Court directing that the application will proceed ex-parte. On the prayer made by the petitioner who is the opponent in the said application, the said order was set aside. After the respondent closed the evidence, the petitioner filed an affidavit in lieu of examination in chief of Smt.Archana Kanthode, Divisional Manager of the appellant. As the said witness did not attend on a 4 th August 2010, an order was passed by the trial Court closing the evidence of the petitioner. On 16 th August 2010, the said application was allowed 2 wp7664.sxw provided cross examination was made on the same day. In the Roznama, the Court noted that the witness failed to remain present on that day. On 30 th August 2010, the learned Judge was on leave. But in Roznama, the case was shown as adjourned for Judgment to 8 th September 2010. On that day, the Court was on leave and the case was shown adjourned to 15 th September 2010 for argument. An application was made by the petitioner by pointing out that on 16 th August 2010, the order was passed at 3.00 p.m and therefore, the witness could not reach the Court from Andheri. A prayer was made for correcting the roznama for showing that the case was adjourned for the cross examination of the witness of the petitioner. By the impugned order, the learned trial Judge allowed the application partly and kept the application for mesne profits for arguments. The learned Judge observed that the petitioner did not comply with the order dated 16 th August 2010 by keeping the witness present and hence, the case was adjourned for arguments. 3 The learned counsel for the petitioner has tendered an affidavit of his witness Smt.Archana Kanthode, Divisional Manager of the appellant. It is stated in the affidavit that the said witness will remain present before the Court of Small Causes. It is also stated in the affidavit that apart from the said witness, the petitioner desires to examine Shri Vivek Shukla,Manager, Shri Milind Bochgire, Administrative Officer, M/s.N.M.Mule and Associates, the Surveyors and another M/s.A.V.Patankar and Associates, Structural Engineers. It is stated that the petitioner will procure the presence of the said witnesses before the trial court. 4 The learned counsel for the respondent opposed the prayer by contending that due to default committed by the 3 wp7664.sxw petitioner, the proceedings for fixing mesne profits are being delayed and therefore, no indulgence be shown to the petitioner. 5 I have given careful consideration to the submissions. In the affidavit tendered across the bar, it is stated that the first witness of the petitioner has already filed affidavit in lieu of examination in chief. It is stated that the attendance of the other witnesses will be procured. In view of the fact that the order dated 16 th August 2010 was passed at 3.00 p.m, the witness under cross examination could not have remained present on the very day. In view of the assurances contained in the affidavit, the prayer made in this petition deserves to the granted. The respondent has suffered as a result of delay. The respondent can be compensated by ordering payment of costs. The amount of costs is quantified at Rs.20,000/-. 6 Hence, the petition is disposed of by passing the following order: i) Impugned order dated 15 th September 2010 is quashed and set aside. ii)The petitioner is directed to keep the witness Smt.Archana Kanthode, Divisional Manager present before the Trial Court for recording cross examination as and when date is fixed for that purpose. iii)The petitioner will not seek any adjournment on the ground that the witness is not present. iv)The petitioner is also permitted to examine other witnesses set out in the additional affidavit dated 11 th October 2010 tendered today. It is the responsibility of the petitioner to procure the 4 wp7664.sxw presence of Smt.Archana Kanthode and other witnesses and the petitioner will not be allowed to seek assistance of the Court for securing the presence of the witnesses. v) The petitioner will co-operate with the Trial Court for expeditious disposal of the main application. vi)The main application shall be disposed of as expeditiously as possible and preferably before the end of February 2011. vii)The petitioner will pay a sum of Rs.20,000/- to the respondent within a period of four weeks from today towards the costs of this petition. Payment of costs will be a condition precedent. JUDGE