1 wp929.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 929 of 2011 M/s. Fab. Fashions ... Petitioner v/s. State of Maharashtra & anr. ... Respondents Mrs. Rita Bhatia with Guru S. for the petitioner. Mr. M.S. Bane-AGP for respondent no.1. Smt. Geeta Shastri i/b. Khilnani & co. for respondent. CORAM:- B.R. GAVAI, J. DATED :- MARCH 08, 2011. P.C. Rule. Rule made returnable forthwith. 2. The petition is taken up for final hearing, by consent. 3. The petitioner challenges the order passed by the learned Small Causes Court dated 13th December, 2010 thereby rejecting the application filed by the present petitioner below exhibit 37. 4. The learned Counsel for the petitioner submits that vide the said order 2 wp929.sxw the learned Judge has rejected the application on a premise that the applicants had filed an application for setting aside the striking of the defence order whereas the application was for permission to cross-examine the witness examined on behalf of the plaintiff. The learned Counsel relies on the Judgment of the Apex Court in the case of Modula India v/s. Kamakshya Singh Deo reported in 1989 AIR SC 162 in support of the proposition that even if the defence is struck of, the defendant is entitled to cross-examine the witnesses examined on behalf of the plaintiffs. 5. The learned Counsel for the respondent vehemently opposes the petition. The learned Counsel submits that vide earlier orders passed by this Court in Writ Petition No. 7849, 7843, 7847 and 7848 of 2008 filed before this Court by the present Respondents, an order was passed by this Court to the effect that in the event the arrears of rent were not deposited by the respondent therein, the defence would be struck of. 6. In that view of the matter, the learned Judge is right in observing that in view of the non-deposit of the arrears of rent, the defence automatically stand struck of. 3 wp929.sxw 7. However, the Apex Court in the case of Modula India (supra) held that even if the defence of the defendant is struck of, he is still entitled to cross-examine the witnesses on behalf of the plaintiffs. 8. In that view of the matter, I find that insofar as limited relief is concerned, the learned trial Court ought to have allowed the said application. 9. In the result, the petition is allowed. 10. Impugned order dated 13th December, 2010 is quashed and set aside. The application filed by the present petitioner for limited extant of cross- examining the witnesses examined on behalf of the plaintiff is allowed. 11. The learned Counsel for the respondent-plaintiff states that on the next date the witness Salim Khan will remain present to offer himself for cross-examination. 12. The parties to therefore appear before the learned trial Court on 15th March, 2011 on which date the petitioners will cross-examine the witness 4 wp929.sxw namely Salim Khan. 13. The learned Counsel for the plaintiff states that on subsequent dates the other witnesses would also remain present for offering for cross- examination. 14. The learned trial Court is directed to conclude the cross-examination of the plaintiff's witness and the arguments on behalf of the parties within a period of one month from today and decide the suit prior to closure of Court before summer vacation. (B.R. GAVAI, J)