*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6418/2009 Shivaji Vishnu Neharkar and others. ..Petitioners -VERSUS- Tukaram Limbaji Bhor and others. ..Respondents ............... Mr.U.B.Nighot, Advocate for the Petitioners. Mr.T.D.Deshmukh, Advocate for the Respondents Nos.1 to 3. ............... CORAM: A.P.DESHPANDE, J. Dated 05th November, 2009. PC:- 1 Rule. Rule made returnable forthwith. By consent of the parties Writ Petition is taken up for final hearing. 2 This Writ Petition is filed by the original Defendants Nos. 8A-1, 8A-2, 8A-5, 9C-1 to 9C-8, 9D, 9E and 10A challenging the order passed by the Joint Civil Judge, Junior Division, Junnar dated 13.07.2009 rejecting their application seeking permission to recall the witnesses examined by the Plaintiffs and for their cross- examination. 3 Few facts that are relevant for adjudicating the dispute in this Writ Petition are narrated herein below:- The Plaintiffs instituted a suit way back in the year 1986. Some of the Defendants/ legal heirs of the Defendants contested the suit by filing their Written Statements. The present Petitioners have *2* moved an application in July, 2008 seeking permission to file the Written Statement on record by setting aside the ex-parte order passed against them. The Trial Court though conscious of the fact that the suit is old did permit filing of the Written Statement by setting aside the ex-parte order as it was found to be in furtherance of the cause of justice. After the present Petitioners’ application came to be allowed by the order dated 12th August, 2008, the Written Statement was taken on record and after setting aside the ex-parte order the present Petitioners were permitted to participate in the proceedings. It is pertinent to note that the Plaintiffs and his witnesses deposed in the suit prior to passing of the order dated 12th August, 2008 by the Trial Court which permitted the Petitioners to file the Written Statement and which set aside the order to proceed ex-parte against the Petitioners. Ordinarily having permitted the Petitioners to participate in the proceedings, the Trial Court ought to have permitted the present Petitioners to cross-examine the witnesses examined by the Plaintiffs, however, on the ground that the application has been belatedly filed, the request made by the Petitioners for recalling the witnesses with a view to cross-examine, has been rejected which gave rise to filing of the present Writ Petition. 4 The learned counsel for the Petitioners has submitted that having permitted the Petitioners to file the Written Statement vide order dated 12th August, 2008, it was obligatory on the part of the Trial Court to have allowed cross-examination of the witnesses examined prior thereto by the Plaintiffs. However, having rejected the said prayer by the impugned order, the Petitioners are put to *3* suffer irreparable loss and it would result in mis-carriage of justice. 5 Per contra, the learned counsel for the Respondents Nos. 1 to 3 (original Plaintiffs) has submitted that the suit is of the year 1986 and the Defendants have delayed the final adjudication thereof. The learned counsel has candidly admitted that the original Plaintiffs did not challenge the legality and validity of the order passed by the Trial Court dated 12th August, 2008 allowing the application dated 16th July, 2008 where-under the permission was sought and granted for filing of the Written Statement by setting aside the ex-parte order. 6 Having suffered the order passed by the Trial Court dated 12th August, 2008, the Respondents Nos.1 to 3 (original Plaintiffs) cannot justify the refusal by the Trial Court to the present Petitioners to permit the cross-examination of the Plaintiffs and their witnesses. In my view, ends of justice would be met by permitting the Petitioners to cross-examine the witnesses already examined by the Plaintiffs before passing of the order dated 12th August, 2008. I am also of the clear view that the Respondents Nos.1 to 3 (original Plaintiffs) need to be adequately compensated for the delay caused in decision of the suit. The present Petitioners did not take immediate steps after passing of the order dated 12th August, 2008 to seek recall of the witnesses examined by the Plaintiffs and for their cross-examination, however, they waited till the matter reached the stage of final argument. 7 Taking overall view of the matter, I am of the considered opinion that the impugned order dated 13th July, 2009 deserves to be quashed and set aside, however, subject to payment of costs by *4* the present Petitioners to the original Plaintiffs. The learned counsel for the Petitioners does not dispute the amount of quantified costs of Rs.25,000/- (Rupees Twenty Five Thousand only) for being saddled on the present Petitioners for permitting them to cross-examine the Plaintiffs and their witnesses. 8 In the result, I pass the following order:- (a) The impugned order passed by the learned Joint Civil Judge, Junior Division, Junnar below Exhibit-425 dated 13.07.2009 is quashed and set aside. (b) The prayer of the present Petitioners for recalling the Plaintiffs and their witnesses for cross-examination is allowed subject to payment of costs of Rs.25,000/- (Rupees Twenty Five Thousand only) by the present Petitioners to the Respondents Nos.1 to 3 (original Plaintiffs) by deposit thereof in the Trial Court within a period of three weeks from today. It is made clear that failure on the part of the present Petitioners to deposit the amount of costs of Rs.25,000/- in the Trial Court within a period of three weeks from today, would result in negating the permission granted by this Court to the present Petitioners for cross-examining the Plaintiffs and their witnesses. (c) The present Petitioners shall complete the cross- examination of the Plaintiffs and their witnesses within a period of one month from the date of deposit of the amount of costs in the Trial Court. (d) The Petitioners in no case shall delay the cross- *5* examination. (e) The Trial Court after affording an opportunity to the Petitioners to cross-examine the Plaintiffs and their witnesses, would make an endeavour to dispose of the suit, as expeditiously as possible. (f) Rule is made absolute in the above terms. (A.P. Deshpande, J)