1 S.B. CIVIL WRIT PETITION NO. 3903/2007. Municipal Council, Udaipur Vs. The Additional District Judge (F.T.) No.2, Udaipur & Anr. Date of Order :: 12th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. B.S.Charan, for the petitioner. Mr. D.L.Mothsra, for the respondent No.2. BY THE COURT: This writ petition is directed against the order dated 18.05.2007 (Annex.4) as passed in Civil Suit No.92/2005 whereby the learned Additional District Judge (Fast Track) No.2, Udaipur has proceeded to close down the chance of cross-examination of the plaintiff by the defendant-petitioner because the petitioner's counsel was not available when the case was called out. Learned counsel for the petitioner prays for indulgence particularly with reference to the fact that the counsel appearing for the petitioner did appear before the Trial Court on the same day albeit during later hours because of such understanding with the counsel for the plaintiff. Learned counsel for the plaintiff-respondent No.2 submits that the plaintiff seeks to contest the matter on merits and shall have no objection if the petitioner is extended another opportunity of cross-examination subject to payment of costs. In view of the fair submissions made on behalf of the plaintiff-respondent and looking to the subject matter, this writ petition is taken up for final disposal at this stage itself. 2 It is noticed that the plaintiff has filed the present suit for money recovery and after framing of issues the matter was set down for plaintiff's evidence but the defendant's opportunity of cross-examination was closed by the Trial Court on 14.03.2007 as the witness was present since 10:30 a.m. and counsel for the defendant did not appear till 2:30 p.m. However, the said order was recalled by the Trial Court on 16.04.2007 and the defendant was extended opportunity of cross-examination on the next date on payment of costs of Rs.200/-. On the next date, i.e., 18.05.2007, though the Court assembled in the morning hours, counsel for the defendant again failed to appear when the case was called out and did not appear till 11 a.m. and hence, the Trial Court proceeded to close down, again, the defendant's chance to cross-examine. Though the order as passed by the Trial Court on 18.05.2007 cannot be said to be wholly unjustified; and the submission made on behalf of the petitioner that counsel did not appear for an understanding with the counsel for the plaintiff has its own shortcomings so far the requirements of answering to the call from the Court is concerned, however, without dilating further on the issue, particularly in view of the fair stand taken on behalf of the plaintiff of having no objection if another opportunity is extended to the petitioner, it appears appropriate that while extending an opportunity to the petitioner, the order dated 18.05.2007 be modified in the manner that upon the plaintiff 3 appearing on the next date of hearing, it shall be required of the defendant to carry out cross-examination without fail. It is made clear that on the next date, said to be 27th inst. as fixed by the Trial Court awaiting orders in this writ petition, or on any other date as might be fixed by the Trial Court, if the plaintiff appears and the defendant commits any default in carrying out cross- examination, the order dated 18.05.2007 shall revive and the Trial Court shall proceed further in accordance with law. So far the aspect relating to costs is concerned, it is noticed that the suit in question is a money recovery suit filed against the Municipal Council, Udaipur; and in the circumstances of the case, it appears just and proper that such aspects of costs, in regard to indulgence being granted to the defendant for cross-examination, be left for determination by the Trial Court at the time of final disposal of the suit. In view of the aforesaid, this writ petition is allowed to the extent and in the manner indicated above and the impugned order dated 18.05.2007 stands modified accordingly. The parties shall stand noticed through their counsel before this Court to appear before the Trial Court on 27.05.2008. There shall be no order as to costs so far this petition is concerned. Record be returned to the Trial Court immediately. (DINESH MAHESHWARI),J. MK