{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7027 OF 2007 Kalyan Vishwanat Rochankari R/o Tuljapur, Dist-Osmanabad PETITIONER VERSUS 1. Anuradha @ Anandi Anil Shinde R/o Tuljapur, Dist-Osmanabad 2. Prabhavati Dnyanoba Roachankari R/o Tuljapur, Dist-Osmanabad 3. Sachin Dnyanoba Rochankari R/o Tuljapur, Dist-Osmanabad 4. Sow.Usha Ramesh Magar Near Sherkhane Petrol Pump Osmanabad 5. Asha Vilas Jadhav R/o Tuljapur, Dist-Osmanabad 6. Meena Dilip Navgire R/o Deokurali, Tq-Tuljapur Dist-Osmanabad 7. Sangram Satish Bhise (Minor) U/g of real father Satish Ganpat Bhise R/o Tuljapur, Dist-Osmanabad 8. Shantabai Kundlik Jangale R/o Korangale Tq-Ausa Dist-Latur 9. Sushilabai Baliram Bhise R/o Tuljapur, Dist-Osmanabad 10. Hari Kalyan Rochankari R/o Tuljapur, Dist-Osmanabad {2} 11. Rukminibai Namdeo Gawade R/o Tuljapur, Dist-Osmanabad 12. Mahadeo Khandchand Bhojwani (Deleted) R/o H.No.4895, Cauliguda, New Gaothan, Hyderabad 13. Dhanyakumar Devidas Kshirsagar R/o Tuljapur, Dist-Osmanabad 14. Shyam Devidas Kshirsagar R/o Tuljapur, Dist-Osmanabad 15. Abhijit Ramchandra Shelke R/o 16. Deepak Bhimrao Ghorpade R/o Tuljapur, Dist-Osmanabad 17. Baliram Mahadeo Bhise (Deleted) R/o Tuljapur, Dist-Osmanabad 18. Raosaheb Apparao Begadi, R/o Tuljapur, Dist-Osmanabad 19. Sudhir Shivajirao Jadhav R/o Tuljapur, Dist-Osmanabad 20. Amol Babasaheb Khochre (Deleted) R/o C/o Babasaheb Chochare Dy.S.P. Jail Road, Police Station, Solapur, Dist-Solapur 21 Kashinath Shyamrao Gate R/o Tuljapur, Dist-Osmanabad 22. Shri Tuljabhawani Pujari Mandal Through President Rajabhau s/o Annasaheb Bhosale R/o Tuljapur, Dist-Osmanabad 23. Navaz Ahmed Mohammad Kalim Ahmad {3} Siddiqui, R/o Tuljapur, Dist-Osmanabad RESPONDENTS ....... Ms.Anjali Bajpai, Dube, Advocate for petitioner Mr.S.S.Chaudhari, Advocate for respondent No.5. Mr.K.K.Kulkarni, Advocate for respondent No.23. Respondents No.12, 17 and 19 are deleted. ....... [CORAM : A.V.POTDAR, J.] DATE : 5th August 2009 JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, this petition is heard finally at the stage of admission. 2. By the present writ petition, under Article 227 of the Constitution of India, the petitioner, who is the first defendant in Special Civil Suit No.220/1998 pending on the file of CJSD, Osmanabad has challenged the order passed below Exhibit-93 dated 19.11.2007. 3. Heard learned counsel for the parties. 4. It appears that respondent No.1 herein has filed a suit for partition and separate possession against petitioner and 22 others in respect of the property described in plaint para No.1. After issuance of summons, the petitioner and other respondents {4} appeared in the suit and filed their written statements. It is a suit in respect of immovable property wherein it is alleged that the property is an ancestral property in which, the plaintiff is having her share and prayed for partition and separate possession of the same. As against this according to the petitioner the said property is a self acquired property. After the pleadings were complete, issues came to be framed and settled. Thereafter, the parties were directed to lead evidence. It appears that on 08.09.2006 as the petitioner and his advocate were absent, after the examination in chief of the plaintiff was over “No cross” order came to be passed. An application came to be moved on 02.11.2006 at Exhibit-91 to set aside the order of “No Cross” and permission to cross examine the plaintiff. Vide order dated 02.11.2006, application Exhibit-91 came to be allowed and the earlier order of “no cross” came to be set aside. Thereafter on 19.11.2007, an order came to be passed and the order dated 02.11.2006 passed below Exhibit-91 came to be recalled and again the earlier order of “no cross” of the plaintiff came to be confirmed, which is impugned in this petition. 5. During the course of submissions, my attention is drawn to the copy of Roznama of the proceedings in Special Civil Suit No.220/1998, particularly to page 84, 85 and 86 of the petition. The Roznama shows that after the order below Exhibit-91 came to be passed, the matter appeared on board on 17 occasions. It further shows that after the application Exhibit-91 was allowed on 02.11.2006, the matter was adjourned to 21.11.2006, 29.11.2006 {5} and 16.12.2006. As an application was filed by defendant No.21 in the said suit as an order of “no written statement” was passed against him and hence the petitioner could not cross examine the plaintiff. The Roznama further shows that on 7 occasions, the court was on leave and hence there was no further progress in the matter. It also shows that when the matter appeared on board the plaintiff, who is to face the cross examination, was not present and hence could not be cross examined. Ultimately, when the matter appeared on board on 19.11.2007, an order to set aside the order passed below Exhibit-91 came to be passed. The endorsement in the Roznama clearly shows that the plaintiff was not cross examined for no fault of the petitioner. If the petitioner i.e. first defendant is not at fault then he is not to suffer for no cross examination of the plaintiff. In the premise, the impugned order passed below Exhibit-93, dated 19.11.2007 is hereby quashed and set aside. 6. The writ petition succeeds. Rule is thus made absolute on the above terms with no order as to costs. The parties are directed to appear before the trial court on 07.09.2009. Considering the old age of the suit, after appearance of the parties, hearing of the same is expedited and the trial court to dispose of the suit within 6 months thereafter. [A.V.POTDAR, J.] drp/wp7027-07