1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO.122 OF 2007 Shaikh Nasir Shaikh Ibrahim ... APPLICANT (Original Plaintiff) VERSUS Mohd. Subhanoddin s/o Sardaroddin ... RESPONDENT (Original Defendant) ..... Shri S.V. Gangapurwala, Advocate for the applicant Shri J.H. Deshmukh, Advocate for the respondent (absent) ..... CORAM : Shrihari P. Davare, J. DATED : 3rd July, 2009. ORAL ORDER: 1. Perused. By the present Civil Revision Application, the applicant has challenged the order passed by learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad on Exh. 47 in Wakf Suit No. 35/2004 on 25.7.2007, thereby depriving the applicant/ plaintiff to conduct the cross-examination of defendant. 2 2. The applicant (original plaintiff) filed Wakf Suit No.35/2004 against the present respondent (original defendant) before the Maharashtra Wakf Tribunal, Aurangabad for recovery of damages along with interest etc. The respondent (defendant) appeared in the said suit and resisted the claim of the applicant by filing written statement. Accordingly, the evidence of the applicant (plaintiff) was recorded. 3. Thereafter, the defendant i.e. respondent herein filed the affidavit in lieu of examination-in-chief under Order XVIII Rule 4 of the Code of Civil Procedure, marked as Exhibit D in the present compilation. According to the applicant/ plaintiff, since the defendant filed various documents along with the said affidavit of examination-in- chief, he preferred an application (Exh. 51) seeking permission to further examine himself in view of subsequent development on 25.7.2007 and “Other side to say” order was passed on the said application. However, the grievance of the applicant is that the learned Presiding Officer, Wakf Tribunal, Aurangabad, without deciding the said application (Exh. 51), dated 25.7.2007 on merits, proceeded to pass “No Cross” order on Exh. 47 on the very day i.e. 25.7.2007 and thereby deprived the applicant/ plaintiff herein to cross-examine the defendant in the said suit. Hence, being aggrieved by the said order, the applicant/ plaintiff has preferred the present Civil Revision Application challenging the same and requested to quash and set aside the same and prayed that directions be issued to the learned Presiding Officer, Wakf Tribunal, Aurangabad to decide the application Exh. 51, dated 25.7.2007 3 on merits and permit the applicant/ plaintiff to cross-examine the defendant. 4. Heard Shri S.V. Gangapurwala, learned counsel for the applicant. Shri J.H. Deshmukh, learned counsel for the respondent remained absent on the last dates as well as he was not present in the morning session. Hence, the matter was kept back at 2.30 p.m. Still Shri J.H. Deshmukh, learned counsel for respondent remained absent even at 3.30 p.m. 5. At the outset, the respondent/ defendant has filed his affidavit in lieu of examination-in-chief under Order XVIII Rule 4 of the Code of Civil Procedure on 30.12.2006 in Wakf Suit No.35/2004. It is produced at Exhibit D of the present compilation. Thereafter, it appears that the applicant herein filed an application (Exh. 51) on 25.7.2007 (Exhibit E annexed to the present compilation) and it is submitted across the bar by Shri S.V. Gangapurwala, learned counsel for the applicant that “Other side to say” order was passed on the very day i.e. 25.7.2007. However, it is pointed out that pertinently the matter was called out on the said date i.e. 25.7.2007 and without deciding the application (Exh. 51) on merits, the learned Presiding Officer proceeded to pass “No Cross” order against the applicant herein. It reflects from the impugned order dated 25.7.2007 that the defendant was present and the Advocate as well as plaintiff’s Advocate was present, but it is observed that he did not intend to cross-examine nor filed adjournment application though 4 the suit was Part Heard. Hence, “No Cross” order was passed by learned Presiding Officer of Wakf Tribunal, Aurangabad. In the said context, it is the contention of the applicant that there is no dispute that the plaintiff’s Advocate was present before the learned Presiding Officer on 25.7.2007, but he requested to decide the application (Exh. 51) on merits to the learned Presiding Officer, but without deciding the said application on merits, the learned Presiding Officer proceeded to pass “No Cross-examination” order against the applicant herein. 6. At this juncture, Shri S.V. Gangapurwala, learned counsel for the applicant also pointed out that the learned Presiding Officer passed the order “Other side to say” on Exh. 51, dated 25.7.2007, preferred by the applicant herein and the learned counsel for defendant sought time to file the say. However, in spite of the said position, without deciding the said application (Exh. 51), the learned Presiding Officer proceeded to pass “No cross” order against the applicant herein. Accordingly, it is apparent that the application (Exh. 51) dated 25.7.2007 preferred by the applicant herein is pending before the Wakf Tribunal, Aurangabad and even the learned Presiding Officer passed an order “Other side to say” thereon and since the defendant sought time to file say thereon. Hence, in such scenario, either the learned Presiding Officer, Wakf Tribunal, Aurangabad could have granted time to the defendant for filing say on the said application or could have decided the said application (Exh. 51) prior to proceeding to pass “No cross” order against the plaintiff/ applicant herein on Exh. 47. Hence, passing of “No 5 Cross’ order against the plaintiff/ applicant herein on Exh. 47 on 25.7.2007 by the learned Presiding Officer, Wakf Tribunal without deciding the application Exh. 51, dated 25.7.2007 would lead to miscarriage of justice and would deprive the applicant the opportunity to cross-examine the defendant. Hence, in view of the said position, interference under the revisional jurisdiction is warranted and the impugned order dated 25.7.2007 passed by learned Wakf Tribunal on Exh. 47 in Wakf Suit No.35/2004 is required to be quashed and set aside with directions to the learned Presiding Officer, Wakf Tribunal, Aurangabad to decide the application (Exh. 51) dated 25.7.2007, preferred by the applicant/ plaintiff herein on merits. 7. In the result, present Civil Revision Application succeeds and same is allowed in terms of prayer clause (B) thereof and the impugned order passed on Exh. 47 in Wakf Suit No.35/2004 by learned Presiding Officer, Wakf Tribunal, Aurangabad on 25.7.2007 stands quashed and set aside and the learned Presiding Officer, Wakf Tribunal, Aurangabad is directed to decide the application dated 25.7.2007 (Exh. 51) preferred by the applicant/ plaintiff on its own merits. (Shrihari P. Davare, J.) fmp/cra122.07