1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5931 OF 2009 Shri. Haresh Arjunbhai Bhagde .. Petitioner Vs Smt. Nasreen Iqbal Memon .. Respondent Mr. Vishal Kanade i/b Jai V. Kanade for the petitioner Ms Rekha Shukla for the respondent CORAM : A.S. OKA, J DATE : 28th JULY, 2009 P.C.: 1. Heard learned counsel for the petitioner and the learned counsel for the respondent. By consent, taken up for final disposal at admission stage. The petitioner is the original defendant who is contesting the suit filed by the respondent / plaintiff for eviction under the provisions of Maharashtra Rent Control Act, 1999. The challenge in this petition under Article 227 of the Constitution of India is to the order dated 7th July, 2009 passed by the learned trial judge on the application at exhibit 245 filed by the petitioner. The application at Rma wp5931-09.sxw 2 exhibit 245 was made by the petitioner praying for issuing witness summons to a witness – Smt. Seema F. Motiwala. The said application has been rejected by the impugned order. The learned trial judge, in the impugned order, referred to the order passed by this Court on 10th March 2009 by which this Court extended the time for disposal of the case by a period of six months as a last chance. It was noted in the impugned order that the said period was to expire on 31st July, 2009. The learned judge observed that full opportunity has been granted to the parties to adduce evidence. The learned judge noted that on 24th June, 2009, the evidence of the petitioner was recorded. The learned judge observed that thereafter the petitioner has not cooperated for disposal of trial. 2. The learned counsel for the petitioner submitted that one of the grounds of eviction is non user. To meet the said ground, the petitioner is desirous of examining four witnesses. He pointed out that the petitioner has made an application to the municipal corporation for grant of certified copies of certain documents and the petitioner is desirous of relying upon the said documents. He submitted that Rma wp5931-09.sxw 3 considering the fact that the suit is for eviction, an opportunity deserved to be granted to the petitioner to examine the said witness. 3. The learned counsel for the respondent pointed out that as a result of the delay on the part of the petitioner, the order of this court of making a time bound schedule for the trial has been completely defeated. She invited my attention to the averments made by the petitioner in application at Ex. 155 filed on 25th August, 2008 before the trial judge. She pointed out that a prayer was made in the said application for declaration that the time provided under Section 38 of the said Act of 1999 for conclusion of trial has come to an end. In the alternative, a prayer was made in the said application that as a trial was not concluded on or before 31st July, 2009, the trial court had no jurisdiction to try and entertain the suit. She submitted that in view of the said dishonest stand taken by the petitioner, this is not a case where extra ordinary jurisdiction of this court under Article 227 of the Constitution of India can be exercised. 4. The learned counsel for the petitioner has tendered an affidavit Rma wp5931-09.sxw 4 of the petitioner. In the said affidavit, the petitioner has tendered an unconditional apology to this court as well as to the trial court for filing the application at Ex. 155. The learned counsel pointed out that on the very day on which the said application was made, the application was not pressed by the advocate for the petitioner and a remark in writing to that effect has been made on the application. 5. I have carefully considered the submissions of learned counsel. The perusal of the application at Ex. 155 shows that the averments made therein by the petitioner are most objectionable. The petitioner has gone to the extent of contending that as the trial court could not dispose of the suit within the time fixed by this court, the trial court had lost its jurisdiction to entertain the suit. However, the said application was not pressed by the petitioner and in any event he has tendered an unconditional apology today by filing an affidavit. As the application was not pressed, the apology deserves to be accepted. 6. The petitioner is facing a suit for eviction. One of the grounds on which the decree of eviction is sought is non user of the suit Rma wp5931-09.sxw 5 premises. In paragraph 4 of the affidavit tendered today, the petitioner has disclosed the names of four witnesses which he wants to examine. He wants to produce certified copies of the certain documents on record of the municipal corporation. If certified copies are not available, he wants a witness summons to be issued to the municipal corporation for production of the said documents. 7. Considering the fact that the petitioner is defending a suit for eviction, a permission will have to be granted to the petitioner to examine aforesaid witnesses and to produce certified copies of the documents on record of the municipal corporation. If certified copies are not available, the petitioner will have to be permitted to take a witness summons for production of the said documents. However, the petitioner will have to take witness summonses by hand and will have to ensure that witness summonses are served and the witnesses appear before the court. It is true that the time granted by this court for disposal of the case is now expiring. Even if this court fixes a time bound schedule, the suit has to be heard in accordance with law and therefore, an opportunity to examine the witnesses cannot be denied Rma wp5931-09.sxw 6 on the ground that the time schedule fixed by this court is not adhered to by the concerned court. 8. Considering the nature of the averments made by the petitioner in the application at Exhibit 155 and observations of the learned trial judge in paragraph 6 of the impugned order, the petitioner will have to pay the costs of this petition to the respondent. The amount of costs is quantified is Rs. 5,000/-. Hence, I pass the following order : O R D E R i. The impugned order is quashed and set aside. ii. The petitioner is permitted to examine Smt. Seema Motiwala, Mr. Farook Ahemad Abdul Aziz, Mr. Subhedar, a Postman and Mr. Kashid, the lineman of Pune Telecom as his witnesses. iii. The petitioner is also permitted to produce certified copies of the documents as stated by him in paragraph 5 of the affidavit tendered today. If the certified copies of the said documents are not made available to the petitioner within a period of four Rma wp5931-09.sxw 7 weeks from today, he will be entitled to apply for issuing witness summons to the concerned officer of the municipal corporation for production of the documents. The petitioner will not be entitled to seek adjournments on the ground that the certified copies of the documents have not been made available. iv. It will be the responsibility of the petitioner to take witness summonses by hand and to serve the same to the concerned witnesses. v. In view of the time schedule fixed by this court, the trial court is directed to conclude the trial as expeditiously as possible and in any event, on or before 30th November, 2009. vi. The petitioner shall pay costs of Rs. 5000/- to the respondent within a period of four weeks from today. vii.The trial court finds that any of the parties are delaying the conclusion of the trial, it will be open for the trial court to Rma wp5931-09.sxw 8 submit a report to this Court to enable this Court to pass appropriate orders. viii.Writ petition is partly allowed in above terms. JUDGE Rma wp5931-09.sxw