1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.10246 OF 2009 Gangadhar Janku Bhoomkar ...Petitioner vs. Mahadeo K.Raskar & Ors. ...Respondents Mr.S.N.Chandrachud for the petitioner None for the respondents CORAM :A.S.OKA,J. DATE : FEBRUARY 17, 2010 P.C. 1 Heard the learned counsel for the petitioner. The petitioner is the 1 st defendant who has challenged the order dated 4 th November 2009 passed by the trial Court. The first plaintiff filed his first affidavit in lieu of evidence on 31 st January 2003 and supplementary affidavit on 5 th July 2006. The order of `No Cross was passed against the petitioner. The plaintiffs closed their evidence on 25 th September 2006. An application was made by the petitioner on 5 th August 2009 with a prayer to set aside the order of `No Cross passed against him on 19 th June 2003 and for seeking permission to cross examine the 1 st plaintiff and his witnesses. 2 The learned counsel for the petitioner submitted that the Advocate engaged by the petitioner expired in December 2004. Due to illness, the petitioner could not keep track of the suit. He pointed out that a Writ petition was filed in the year 2007 by the 2 nd defendant. The petitioner was made a party to the said petition and only after the petitioner became aware of the said Petition, he learnt that a suit is pending. After taking legal advice, the present application has been filed. He submitted that an opportunity deserves to be granted to 2 the petitioner to defend the suit by cross examining the plaintiff and his witnesses. He submitted that the petitioner is ready and willing to pay a reasonable costs. 3 I have given consideration to the submissions. As stated earlier, the first affidavit in lieu of evidence was filed by the 1 st plaintiff way back on 31 st January 2003. The order of `No Cross has been passed on 19 th June 2003. The plaintiffs closed their evidence on 25 th September 2006. Thereafter, the 2 nd defendant filed an affidavit in lieu of evidence of his witnesses on 15 th November 2006. The 2 nd witness of the 2 nd defendant filed an affidavit in lieu of examination-in-chief on 19 th January 2007. the 2 nd defendant closed his evidence on 3 rd November 2008. The impugned order notes that the 3 rd defendant filed an affidavit of his witness on 22 nd January 2009. The 3 rd defendant closed his evidence on 5 th August 2009. The 2 nd defendant, his witness and the third defendant were not cross examined by the petitioner. The petitioner has relied upon a Writ Petition of the year 2007. However, the present application was filed on 5 th August 2009. The present application has been filed by the petitioner on 5 th August 2009 that is the date on which the 3 rd defendant closed his evidence. 4 The learned trial Judge in paragraph 9 of the order has observed that there is delay of 6 years and more in filing the application. There is gross unexplained delay. Moreover, in the written statement, the 1 st defendant- petitioner has disclosed that he has executed an agreement in respect of the suit property in favour of the 2 nd defendant. 3 5 Considering the aforesaid factual aspects, the learned trial Judge has declined to exercise discretion in favour of the petitioner. It is not possible to find fault with the discretionary order passed by the trial Court in the Writ jurisdiction under Article 227 of Constitution of India. Writ Petition is rejected. JUDGE