ssm 1 47.wp.1536.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1536 OF 2011 M/s. The Oriental Insurance Company Ltd. ....Petitioner Versus The Hindoostan Spinning and Weaving Mills Limited. ....Respondent ___________ Mrs. Anita Castellino i/b Raymond V. Samuel for the Petitioner. Mr. Sameer Tembekar for the Respondent. CORAM: B. R. GAVAI, J. DATED : 15 TH MARCH, 2011 P.C.: Rule. Rule is made returnable forthwith. Heard by consent. 2. By this Petition, Petitioner challenges the order dated 13 th January, 2011, vide which, an application filed by the present Petitioners for permission to lead evidence came to be rejected. 3. The Respondent has initiated suit for eviction against the present Petitioners and the proceedings are pending before the learned ssm 2 47.wp.1536.11 Trial Court. In the said proceedings, the evidence of the Plaintiff was closed on 28 th October, 2010. Thereafter, the matter has been adjourned on certain dates on which dates, according to the Petitioners, the Presiding Officer was absent. On 21 st December, 2010 when the matter was listed and when it was called out, the Petitioner/Defendant was not present and therefore the matter was kept for orders. The application came to be filed on the same day that the witness was not present as he was under transfer and undertaking was also given that on the next date, the witnesses would remain present. As such, it was prayed that the Petitioner be permitted to lead their evidence and examine the witnesses. By the impugned order, and the application was dismissed. Hence this Petition. 4. The learned Counsel for the Petitioner submits that since the Petitioner is a Government undertaking and since its officers are under transfers, it was not possible to keep the witnesses ready on 21 st December, 2010 and as such the impugned order dated 13 th January, ssm 3 47.wp.1536.11 2011 needs to be quashed and set aside. 5. The learned Counsel for the Respondent vehemently opposes the Petition. He submits that the Petitioner was not diligent in defending the case and no interference is warranted. 6. No doubt that the Petitioner ought to have been kept its witnesses ready on 21 st December, 2010. However, on account of certain lapses on one occasion, I find the Petitioner which is a Government of India undertaking, should not be deprived from defending the case. Insofar as the prejudice which is caused to the Respondent is concerned, can be compensated by saddling costs. 7. In the result, the Petition is allowed. The impugned order dated 13 th January, 2011 is quashed and set aside. The Petitioner would be permitted to lead their evidence and examine their witness. It is informed that the next date is 17 th March, 2011 i.e a day after tomorrow. In that view of the matter, the learned Trial Court shall give short date so as to enable the Petitioner to keep its witnesses ssm 4 47.wp.1536.11 present. The learned Trial Court would permit the Petitioner to examine its witnesses provided the witnesses are present on the adjourned date. It is however made clear that thereafter no adjournments would be granted to the Petitioner for examining its witnesses. In the event, the witnesses of the Petitioner are not present when the matter is fixed for evidence, the learned Trial Court would be at liberty to pass an order of closing defence of the Petitioners. The Petition is allowed, however, same would be subject to the costs which is quantified to Rs.10,000/-. The petitioner/defendant shall deposit the costs in the Trial Court within two weeks from today. On deposit of the costs, the respondent/plaintiff will be at liberty to withdraw the same. (B. R. GAVAI, J)