-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.7723 OF 2006 PETITION NO.7723 OF 2006 PETITION NO.7723 OF 2006 Ajay Narayan Ghadge ...Petitioner vs. Sakharam Bhimrao Patil and ors. ...Respondents Mr.Amit Sale for the Petitioner Mr.Mandar Limaye for Respondent Nos.1 to 7. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 5,2007. : FEBRUARY 5,2007. : FEBRUARY 5,2007. P.C.: P.C.: P.C.: 1. Heard Advocates for the parties. The Petitioner is a defendant in a suit filed by the Respondent Nos.1 to 7 herein. As the Petitioner remained consistently absent on four dates for cross examining the witnesses examined by the original Plaintiffs, on 8th September 2006, the learned trial Judge struck out the defence of the Petitioner. Thereafter, an application was moved for setting aside the order dated 8th September 2006 which has been rejected by the impugned order dated 3rd November 2006. 2. After having heard the Advocates for the parties, I find that after the written statement filed by the Petitioner was taken on record, the learned trial Judge could not have struck out the defence of the Petitioner on the ground that he did not remain present at the time of recording of evidence. In Application at Exh.57 made on behalf of the Petitioner, reasons were set out for the absence of the Advocate for the Petitioner. It is obvious that the absence of the Advocate for the Petitioner was the only reason why the order dated 8th September 2006 came to be passed. -2- 3. Considering the aforesaid facts, an opportunity deserves to be granted to the Petitioner to contest the suit by cross examining the witnesses of the original Plaintiffs. A sum of Rs.5,000/- has already been deposited by the Petitioner by way of costs payable to the Respondents. 4. Hence, I pass the following order : i) Order dated 8th September 2006 passed below Exh.1 in R.C.S.No.32 of 2001 is quashed and set aside. It is made clear that the Petitioner is entitled to defend the suit. ii) The order dated 3rd November 2006 passed below Application at Exh.57 is quashed and set aside and the said Application is allowed. iii) Parties are directed to appear before the learned trial Judge on 26th February 2007. The original Plaintiffs will keep their witnesses present on the next date to enable the Advocate for the Petitioner to cross examine the said witnesses. iv) It is made clear that the Petitioner is not entitled to ask for adjournment on any unreasonable grounds. v) The Respondent Nos.1 to 7 are entitled to withdraw a sum of Rs.5,000/- deposited by the Petitioner in this Court by way of costs. vi)Petition is partly allowed in above terms with no order as -3- to costs. JUDGE JUDGE JUDGE