1 WP 9442/2010 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9442 OF 2010 Sou. Jyotsna Prakash Tamhankar .. Petitioner V/s Sou. Shobha Vinayak Dhepe .. Respondent Mr. Nitin Mulye for the petitioner. Mr. Kailash Chavan for the respondent. CORAM : D.G. KARNIK, J. DATE : 17TH JUNE 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Chavan waives service of the Rule. By consent, the petition is heard forthwith. 3. Petitioner is the defendant and respondent is the plaintiff in Special Civil Suit No. 186 of 2008 pending in the Court of Civil Judge, Senior Division, Nashik. After the respondent filed her affidavit in lieu of examination in chief, the matter was posted for cross examination of the respondent. The cross 2 WP 9442/2010 examination commenced on 10th March 2010 and as it was not concluded, the matter was adjourned. It appears that the cross examination continued on one or two more dates and the suit was posted on 21st July 2010 for further cross examination. On that day, the Court passed an order of closure of cross examination of the plaintiff on the ground that the defendant’s advocate was absent. Immediately on the same day, the defendant’s advocate appeared and gave an application for setting aside the “no cross” order and sought permission to cross examine the plaintiff further. The application was rejected. The present petition is directed against the order of rejection. 4. Learned counsel for the petitioner states that on 21st July 2010, the petitioner’s advocate was present in the Court at 11.00 a.m. but the Court was busy dictating an order in another matter. The petitioner’s advocate, therefore, went to another Court to attend some other matter and before he could return, the Court had passed the order closing cross examination. Thereafter the petitioner’s advocate applied for setting aside the order of closure of the cross examination but it was rejected. These facts have also been stated by the petitioner in para 2D of the petition which are not controverted by the respondent. 3 WP 9442/2010 5. In the facts and circumstances of the case, in my view, the trial Court ought to have allowed the application made by the advocate for the petitioner on the same day for permission to cross examine. Reason given by the Court for its rejection that by the time the application was made the plaintiff’s witness had already gone, even if it is assumed to be true, could not be a ground for rejection of the application. The Court could at most imposed costs on the petitioner so as to compensate the plaintiff-respondent for the time spent and expenditure he would have been required to incur for coming to the Court again. The Court also have appointed a court commissioner for recording of the evidence by way of cross examination of the plaintiff as the same is permitted under amended provision of Order 18 Rule 4 of the Code of Civil Procedure and provided for the payment of costs of commission in entirety by the defendant. The Court ought to have endeavoured to do substantial justice between the parties by allowing the application by recalling the order of closure of cross examination which was made by the petitioner on the same day. 6. For these reasons, the petition is allowed, the impugned order is set aside and the application of the petitioner for 4 WP 9442/2010 permission to further cross examine the P.W.1 is granted subject however to the payment of costs of Rs.200/-. Costs shall be deposited in the trial Court within 4 weeks. 7. All concerned shall act upon a copy of this order authenticated by the Private Secretary of the Court / Court Sheristedar. (D.G. KARNIK, J.)