1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 685/2009 Vishal B. Lakde and another vs. Santosh H. Borle & another - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- CORAM : S.R.DONGAONKAR, J. DATE : 13 th FEBRUARY , 2009 Heard Shri Rugved Dhore, Advocate, for the petitioners. The petitioners are challenging the order passed by the 4th Joint Civil Judge, Junior Division, Pusad, dated 15.11.2008, whereby the plaintiffs were restrained from cross examining the defendant no.2 as she is not adverse party to them. Learned counsel for the petitioners submits that the said order was passed at the premature stage and there was no question as to the cross examining of defendant no. 2 (mother) by the plaintiffs (sons). The impugned order is perused. The learned trial Judge has observed that - 2 “4. After hearing both the parties at length, I have carefully gone through aforesaid citation in which it is held that, 'if a party accepts the plaintiffs case, there is no contest between the plaintiff and that party and such a defendant cannot style as an adverse party and would, therefore, not be entitled to cross examine the plaintiff'. 5. By taking into mind the aforesaid principle, I have gone through the present case. It appears to me in the instant case the written statement at Exh.82 filed by defendant No. 2 is wholly supported the plaintiffs case and prayed to decree the suit. So the defendant No.2 cannot be said to be adverse party merely because she appeared to be pro forma defendant in cause tile of the plaint. The learned trial Judge also stated that Section 137 of the Evidence Act mandates that the cross examination can be at the instance of adverse party and in the present case it does appear that the defendant No.2 - Parvatibai i.e. mother of the plaintiffs has admitted the plaintiffs' case and in fact stated that the decree be passed in favour of the plaintiffs. In such situation, though the submissions of the learned counsel for the 3 petitioners that it was premature to restrain the plaintiffs for cross examination as the defendant no.2 is not examined may sound little bit attractive, but the same cannot be considered for invoking extra ordinary jurisdiction of this Court. Therefore, the petition is liable to be dismissed. It is made clear that if this issue arises at the latter stage of the suit, the same can be decided on merits at that stage. The petition is dismissed with the above observation. JUDGE Rvjalit