1 wp474.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 474 OF 2011 Ramesh Nagorao Kalyan ..PETITIONER -VERSUS- Mahananda D/o Nagorao Jadhav and others ..RESPONDENTS ..... Mr. A.G. Godhamgaonkar, advocate for petitioner. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 21st January, 2011. PER COURT : 1. Heard Advocate Mr. Godamgaonkar for the petitioner. He states that in transfer proceedings, this Court has already issued notices and trial Court is showing undue haste in adjudicating Special Civil Suit No. 17 of 2009. Because of this attitude only, the petitioner-defendant was required to change the counsel twice. He also makes a grievance that though the Court was informed that Advocate is hospitalised, the Court has not taken due cognizance thereof. 2. Perusal of the various orders passed by the trial Court from time to show that after examination-in-chief of plaintiff was 2 wp474.11 completed on 17.08.2010, the adjournment was given to petitioner- defendant and on adjourned date i.e. 19.08.2010, he again sought adjournment. That was granted on depositing costs of Rs. 100/-. That cost is not deposited. The matter was however, adjourned to 25.08.2010 and petitioner moved another application vide Exhibit-41, which came to be rejected. He moved application exhibit-44 seeking further time to cross examine the plaintiff, which was also rejected. The learned Counsel then representing him and present in the Court, declined to cross examine the plaintiff. Hence, the right to cross examination the plaintiff was forfeited. 3. On 17.08.2010, the affidavit of P.W. 2 was filed and then after her examination-in-chief, the petitioner-defendant sought time to cross examine P.W. 2. That time was given till 02.09.2010 and on 02.09.2010 again application Exhibit-47 was moved and it was rejected. The counsel present in the Court on behalf of petitioner declined to cross examine, hence right to cross examine was forfeited. Order dated 23.09.2010 on application Exhibit-57, shows that it was moved for setting aside forfeiture and that was allowed, subject to costs of Rs. 2,000/-. The petitioner-defendant no.1 was given right to cross examine the plaintiff and P.W. 2 again. 4. Thereafter, on 20.09.2010, the plaintiff examined P.W. 3 Shri. 3 wp474.11 Laxman and on the same day, the cross examination was deferred till next date i.e. on 11.10.2010. On 11.10.2010, defendant no.1 and his Advocate were absent. The trial Court, therefore, forfeited rights of petitioner-defendant no.1 to cross examine said witness. Learned Counsel representing other defendants refused to cross examine that witness and hence the matter was proceeded further. On 13.10.2010, the petitioner-defendant no.1 moved an application at Exhibit-76 stating that he has appointed new Advocate and he should be permitted to cross examine the P.W. 3 and P.W. 4. Application was opposed by other side by pointing out that though cost of Rs. 2,000/- was imposed on earlier occasion, the plaintiff and P.W. 2 were not cross examined and hence, application, under reply, at Exhibit-76 should also be rejected. On 13.10.2010, the trial Court passed an order on that application and same came to be allowed, subject to costs of Rs. 1000/- and it was directed to issue summons to P.W. 3 and P.W. 4. The matter was then taken up on 18.01.2011 and on that day, the petitioner-defendant no.1 again sought adjournment stating that when he went to his new Advocate, he found that his new Advocate was admitted in some hospital. He has also given name of that hospital and also produced the copies of certificates given by Doctors in support of his application and sought 15 days adjournment. Application was strongly opposed by other side pointing out that earlier three 4 wp474.11 Advocates were changed and the adjournment on same ground were sought by the plaintiff even earlier. Application has been considered by the trial Court on 18.01.2011. It found that the matter is pending for cross examination since 10.01.2011 and the application for adjournment on the said ground were also moved earlier i.e. on 11.10.2010. It has then made reference to provisions of Code of Civil Procedure and Civil Manual and relied upon it. In this background, it has made certain observations about the reasons of ill-health of Advocate. Emphasis is not on ill-health of Advocate but on the conduct of matter by petitioner-defendant no. 1. After making all those observations and inspite of strong objection, it adjourned the matter and gave opportunity to the petitioner to cross examine the witness. However, it expressly warned him that if he did not cross examine the witness on the next day, consequences under Rule 1 and 3 of Order XVII of the Civil Procedure Code would follow. This order impugned herein was passed on 18.01.2011 and matter was then adjourned to today. 5. Facts above clearly show that the trial Court has given sufficient opportunity to the petitioner-defendant no.1. He also sought transfer of proceedings under Section 24 of the Civil Procedure Code and Principal District Judge has already rejected 5 wp474.11 that application. Writ Petition challenging that order is pending but there is no interim relief. 6. In this circumstances, I do not notice any jurisdictional error or perversity. The Petition is rejected. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp474.11