1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1298 OF 2009 Mr.Appasaheb Mallappa Bargale (since deceased through his L.Rs) Smt.Kamal Appaso Bargale & Ors. ...Petitioners vs. Devgonda Balgonda Kumbhoje (since decased through his Lrs) Ranabai Devgonda Kumbhoje & Ors. ...Respondents Mr.Sandeep Koregave for the petitioner Mr.P.M.Arjunwadkar for respondent Nos.1A,1B,1C (i) to 1C(v), 1D, 1E, 4 to 6, 13 to 15. CORAM :A.S.OKA,J. DATE : SEPTEMBER 10, 2009 P.C. 1 The submissions of the learned counsel for the parties were heard earlier. The petitioners in this writ petition under Article 227 of the Constitution of India have taken an exception to the Judgment and Order dated 27 th August 2008 passed by the trial court below application at Exh.99. 2 The petitioners are the original plaintiffs. In a suit filed by the petitioners, they filed an affidavit in lieu of examination in chief of the petitioner no.1C Deepak Bargale. On 13 th June 2006 the witness was absent and therefore, no cross order was passed. On 23 rd July 2008, the witness was not well and therefore, application for adjournment was made by the petitioners which was granted. On 22 nd August 2008, the petitioners 2 again made an application for adjournment on the ground of ill health of the witness. The trial court rejected the said application and passed an order closing the evidence of the petitioners. An application at Exh.99 was made for setting aside the earlier order and for permitting the petitioner to examine the said witness. By the impugned order, the said application has been rejected. 3 Reliance has been placed by the petitioners on the medical certificate issued in favour of the said witness which is annexed to the petition and it is submitted that a very harsh view has been taken by the court. The learned counsel for the respondent supported the impugned order by contending that repeated adjournments were sought and granted and hence there was no option for the trial court but to close the evidence of the petitioners. He submitted that no interference is called for. 4 I have carefully considered the submissions. It is true that at least on two dates the petitioner no.1C did not remain present. In the application at Exh.99 a specific assertion has been made that the said witness was present on that date i.e. 26 th August 2008, when the application was filed. The medical certificate on record shows that from 18 th August 2008 till 26 th August 2008 the witness was under treatment for upper respiratory infection. It must be noted here that the affidavit of the witness was filed on 7 th June 2006. As 3 the witness was present on 26 th August 2008, the trial court ought to have adopted a liberal view by allowing his examination. The learned trial Judge could have directed the petitioners to pay costs. A very harsh and hyper-technical view has been taken by the trial court. Hence, the impugned order deserves to be quashed and set aside subject to the petitioners paying costs of Rs. 3500/- to the respondents. It is made clear that the petitioners will have to keep their witness present on the date fixed by the trial court. No further adjournment will be granted for that purpose. 5 Hence, I pass the following order : i) Impugned Judgment and Order is quashed and set aside. The application made by the petitioners at Exh.99 is allowed subject to the petitioner paying costs of Rs.3500/- to the respondents within six weeks from today. The amount of costs shall be deposited with the trial court. Payment of costs will be a condition precedent. It is made clear that the petitioner will ensure that their witness is present on the date fixed by the trial court. ii)Writ petition is allowed in above terms. JUDGE