1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7372 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 7372 OF 2010 *** 1. Heard Advocate Mr. Biradar for Petitioner, Advocate Mrs. M.D.Thube-Mhase for Respondent Nos.1 and 2. 2. Trial Court has refused prayer of petitioner/ defendant to set aside order of "no evidence" against him and to permit him to cross examine the plaintiff. The order is questioned by urging that on 26th Marcy, 2010 the petitioner had applied for further cross examination of plaintiff and that was allowed. Because of that order, the defendant was mislead and she did not remain present before the trial Court. Reliance is being placed upon judgment in the case of "Foodworld Super Markets Limited and another V/s H. Sujan Singh and others" reported in (2009) 14 SCC 359 to urge that in such circumstance denial of opportunity would 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7372 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. result in serious loss to the petitioner/ defendant. 3. Learned counsel for Respondents/ plaintiffs supports the impugned order and contends that there is no jurisdictional error. 4. The impugned order dated 26th July, 2010 is passed on application moved on very same day by petitioner. Only reason given is on 26th Marcy, 2010 her application for cross examining plaintiff was allowed but then it is also accepted that thereafter she did not take any steps either to cross examine plaintiff or to lead her evidence. 5. During hearing, attention of this Court has been invited to the order sheet dated 26th March, 2010 which shows that on 26th March, 2010 vide Exhibit-72 Respondent/ plaintiff filed Purshis and closed his evidence. Thereafter, the petitioner/ defendant sought adjournment Vide Exhibit-74 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7372 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. and he was directed to complete his evidence on next date. Matter was adjourned to 30th April, 2010. Thereafter matter has been adjourned from time to time. On 6th July, 2010, the trial Court appears to have rejected application at Exhibit-76 moved by petitioner for dismissal of suit with costs and thereafter it has closed evidence of petitioner/ defendant and matter came to be adjourned to 26th July, 2010. In the application dated 26th July, 2010 seeking re- opening of matter, petitioner/ defendant has not disclosed all these developments or then has not explained why he could not complete cross examination of plaintiff or lead his own evidence on any of these dates. 6. Trial Court has correctly appreciated the controversy and I do not see any jurisdictional error. 7. In the reported judgment Honourable Apex Court has noted that the explanation offered 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7372 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. by defendant was satisfactory and bonafide and that explanation was not properly appreciated by trial Court and high Court. In this background, the further observations that fore-closure of defendants right of cross examination results in grave prejudice are made. Here, the petitioner/ defendant has failed to show her bonafides and to offer a proper explanation. 8. Writ petition is dismissed. No costs. [B.P.DHARMADHIKARI, J.] Dated:20/04/2011. ans/7372