1 wp7658-10.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7658 OF 2010 Nisha Mansing Pardeshi .. Petitioner Versus Sunita Dayanand Salaskar .. Respondent Mr. Sandesh Patil for the petitioner, Mr. A. A. Garge, for the respondent. CORAM: R. M. BORDE, J. DATED : 18th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. With the consent of the learned counsel appearing for the parties, taken up for final disposal at the admission stage. 3. Heard Mr. Patil the learned counsel for the petitioner and Mr. Garge, the learned counsel for the respondents. 4. The only grievance made in the petition is in respect of rejection of Exh.52, an application tendered by the 2 wp7658-10.sxw defendant seeking permission to cross examine the plaintiff- the respondent herein. The plaintiff presented an application requesting for grant of Succession certificate. The petitioner herein presented an objection and as such the proceedings were converted to contentious one and registered as a Special Civil Suit No.110 of 2005. An affidavit in lieu of examination in chief was tendered by the plaintiff. However, on the given date, in spite of presence of the plaintiff before the Court , the defendant failed to cross examine the plaintiff. This episode continued for about 2/3 dates. As such, the trial court, ultimately passed an order dated 21/7/2010 below Exh. 1, forfeiting the right of the defendant to cross examine the plaintiff. 5. The defendant thereafter moved an application Exh. 52, requesting the Court to permit her to cross examine the plaintiff on the given date. The defendant also exhibited willingness to pay the cost. The trial court, however, considering the past conduct of the defendant, turned down the application tendered at Exh.52. 6. I have perused the application as well as the 3 wp7658-10.sxw impugned order and also heard the arguments advanced by the learned counsel appearing for the respective parties. 7. The defendant has set out the reasons for her failure to remain present before the court and cross examine the witness on the given date. I am convinced that the reasons set out in the applications are convincing and considering the facts and circumstances of the case, the defendant needs to be given an opportunity to put forth her contentions. The defendant shall have to be permitted to cross examine plaintiff with a view to meet the ends of justice. 8. The petition, therefore, deserves to be allowed, however, subject to payment of cost of Rs.2000/- payable to the plaintiff within four weeks from today., 9. The option is available to the defendant to deposit the amount of cost with the trial Court and on making such deposit, the plaintiff shall have liberty to withdraw the same. 10. The plaintiff shall make herself available for cross examination on 15th September, 2011 and the defendant shall complete the cross examination on the given date or any 4 wp7658-10.sxw subsequent date thereafter. In any eventuality, the matter shall not be adjourned and the defendant shall not be given any further opportunity to cross examine the plaintiff. 11. In the event of failure of the defendant to avail the opportunity to cross examine the plaintiff on the given date, her entitlement to cross examine the witness shall be deemed to have been forfeited. 12. In view of the directions as above, the rule is made absolute. ( R. M. BORDE, J.)