1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3907 OF 2009 Smt. Narmadabai Sitaram Fulwade and anr .. Petitioners -versus Narayan Laxman Soma and ors .. Respondents. Mr. S. S. Kulkarni, for the petitioners R. M. Vanoo, for the respondent Nos 1A, B, and C. CORAM: A.S. OKA, J DATED: September 25, 2009 P.C. 1. The submissions of the learned counsel appearing for the parties were heard on the earlier date. The present petition under Article 227 of the Constitution of India is filed by original defendant No.2C and 3, while the legal representatives of the first respondent are the legal representatives of the original plaintiff. 2. The challenge in this writ petition is to the order dated l6th February, 2009, passed by the Trial Court, below application at Exh.99, made by the petitioners. It will be necessary to briefly refer to the facts of the case. 3. In a suit filed by the original first respondent, issues were framed on 18th January, 1996. The second petitioner filed his 2 written statement on 24th March, 1999. The respondent No.lA filed his affidavit in lieu of his examination in chief on 5th November, 2004. He was not cross examined and therefore on 26th November, 2004, learned Trial Judge has passed order of “no cross”. At the instance of second petitioner an application was filed at Exh.79, for setting aside the said order dated 26th November, 2004. The said application was allowed by the Trial Court. Subsequently on application made by the first petitioner, the said petitioner was impleaded as party defendant No.2C by an order dated 7th January, 2004. On 1st November, 2006, the trial Court, passed order of “no cross”, even as against the first petitioner. Subsequently on application made by the first petitioner, the Trial Court directed the original plaintiffs to file amended plaint. On 14th September 2007, first petitioner tendered written statement. Instead of taking written statement on record, learned Trial Judge recorded an order on the said written statement as “filed”. Subsequently an application was moved by the first respondent for recasting the issues. On 16th January,2008, respondent No.1A filed further affidavit in lieu of examination in chief. On 7th April,2008, the respondents closed their evidence. There were two prayers made in the application at Exh.99. First prayer is for taking written statement of the first petitioner on record and the second prayer is for setting aside order of “no cross”. By impugned order, the learned Trial Judge 3 rejected the said application. 4. The learned counsel appearing for the petitioner submitted that the written statement of the first petitioner ought to have been taken on record. He submitted that the Court ought to have permitted cross examination of respondent No.1A by the petitioners. Learned counsel for the Respondent No1A, supported the impugned order by contending that same was moved belatedly. He pointed out that the suit is of the year 1993. He pointed out that the application at exh.99 was belatedly filed long after the order of “no cross” was passed. He submitted that no interference is called for. 5. I have carefully considered the submissions. It must be stated here that by order dated 7th January,2006, first petitioner was impleaded as defendant No.2C. On the application made by the first petitioner on 28th April, 2007 the plaintiffs were directed to file amended plaint and summons was ordered to be issued after the amended plaint was filed. The written statement of the first petitioner was filed on 14th September 2007. In fact on the basis of said written statement, an application was made by the original plaintiffs for recasting the issues in the light of defence taken by the first petitioner. Additional affidavit in lieu of examination in chief was permitted to be filed as a consequence of impleadment of first petitioner. Thus, even the plaintiffs were under impression 4 that written statement of first petitioner was taken on record. In the impugned order, the learned Trial Judge has glossed over the aforesaid factual position. It is true that the first petitioner could have cross examined respondent 1A at least on 7th April,2008 and that was not done. It is also true that the application has been made by the petitioners in July, 2008. As first petitioner was impleaded as a party after the evidence of respondent No1A was recorded, it is obvious that the Trial Court has taken not only a harsh but erroneous view of the matter. The first petitioner’s written statement ought to have been taken on record. It is true that the suit is of the year l993. The loss caused to the concerned respondents can be compensated by payment of costs. The amount of costs is quantified at Rs.5,000/-. Hence I pass the following order. ORDER I) The impugned order dated 16th February, 2009, is quashed and set aside and the application made by the petitioners at exh.99 is allowed. II) In view of the aforesaid order, it will be open for the original plaintiffs to lead further evidence, if any. It is made clear that even the petitioners will be entitled to lead the 5 evidence. III) The petitioners shall pay costs of Rs.5,000/- to the Respondent Nos 1A to 1C. The amount of costs to be deposited with the Trial Court, within a period of 8 weeks from today. IV)The payment of costs will be a condition precedent. (A.S.OKA, J)