1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1142 OF 2008 Gautam Anupchand Shah & Anr. .. Petitioners Versus Parshottamdas Khiaram Popli .. Respondents Mr.P.K.Dhakephalkar, Senior Advocate with N.P.Shimpi for petitioners CORAM : S.C.DHARMADHIKARI, J. DATE : 17th March 2008 P.C. . A notice of motion for stay of suit which has been filed by the present petitioners could not have been adjourned till the hearing of the suit. Both sides do not dispute before me that the notice of motion prays for stay of the subject suit till trial in R.A.E. Suit No.1695 of 1996 pending in Small Causes Court is concluded. Obviously, therefore, the petitioners before me are invoking powers of the trial court to stay hearing of the suit being Suit No.2474 of 2 1994. The power that is invoked is under section 10 read with 151 of C.P.C. Such a request could not have been deferred till the trial of this suit because the application for stay cannot be rendered infructuous in this manner. That apart, it appears that once the notice of motion was taken out, the parties were present on a particular date. Within a short period, the plaintiffs witness was directed to be cross examined by the present petitioners. Since, their Advocate was not present in the Court, they declined to cross examine. Therefore, the trial court forfeited their right to cross examine plaintiff’s witness. 2. Once the application for stay of suit was pending and that had to be argued, the legitimate expectation was that the trial court will take up that application first and defer the trial till any decision thereon. This was very reasonable request and should not have been rejected and in 3 any event rejected by an order which would have serious impact on the outcome of the proceedings. 3. In the above circumstances, the order of the trial court dated 14th January 2008 is quashed and set aside and the motion for stay is directed to be heard as expeditiously as possible and within a period of four weeks from today. If the motion of the petitioners is rejected, then, petitioners be permitted to cross examine the plaintiffs’ witness on the date and time specified by the trial court without prejudice to their rights and contentions to challenge the order on the notice of motion further. The suit, thereafter, to proceed in accordance with law. Petition allowed in the aforesaid terms. No costs. 4 (S.C.Dharmadhikari, J)