1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3620 OF 2009 (Gadchiroli District Central Coop. Bank Ltd. & Anr. vs. Pundlik R. Akre) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 27, 2009. Heard Shri Samarth, learned counsel for the petitioners - plaintiffs and Shri Khamborkar, learned counsel for the respondent – defendant. In a suit filed for recovery of damages on account of defamation, the petitioners – plaintiffs wanted to examine the Newspaper personnel to show the publication as same was denied by the respondent – defendant. It appears that no list of witnesses was submitted and Court below closed the case as said Newspaper personnel was not produced before it within reasonable time. The plaintiff then moved an application on 09.04.2009 vide Exh. 89 and it came to be dismissed on 24.04.2009 observing that it was very vague. Thereafter on next date i.e. on 25.04.2009, the plaintiff moved another application and pointed out that said Newspaper by name Nav Rashtra was already closed down and after enquiries, the plaintiff gathered that the old papers, records etc. were with Madhadesh Private Limited. He, 2 therefore, wanted to summon the said Newspaper personnel for proving the publication of two Newspapers dated 14.05.2002 and 25.05.2002 in which defamatory statements were published. The Court below has by impugned order dated 17.07.2005 found that the matter was closed for final arguments and the plaintiff was moving applications thereafter to prolong the matter. It also noticed that when it was passing the orders, the learned counsel for the plaintiffs was absent. This Court has on 02.09.2009, after considering these facts, issued notice for final disposal and stayed delivery of judgment. Shri Samarth, learned counsel states that despite best efforts, the notice could not be issued to the witnesses or witnesses could not be produced and there are no malafides in the matter. Shri Khamborkar, learned counsel states that there was no list of witnesses filed and denial of publication in Newspaper was the plea taken in written statement by the present respondent. In these circumstances, the petitioners – plaintiffs should have acted within time to see that relevant witnesses are kept present. He points out that witnesses are to be kept present privately by the petitioners. He further states that as there was no evidence on record, it was not necessary for the respondent – defendant to enter witness box and if at this stage this Court interferes, the entire trial is required to be reopened. 3 Considering the fact that suit was for recovery of damages on account of defamation and two Newspapers were already placed on record, it is difficult for this Court to impute any malafides to the petitioners – plaintiffs as it cannot be presumed that they have deliberately acted against their own interest. It is apparent that said Newspaper was closed down and perhaps the petitioners - plaintiffs are intending to examine the successor. However, nothing can be said finally about it because ultimately, the respondent – defendant can in cross examination bring out relevant material. The inconvenience caused to the respondent – defendant can be compensated by awarding him adequate costs. The Suit is for recovery of damages of Rs.75 lakhs. Hence, subject to payment of cost of Rs.10,000/- by the petitioners to the respondent by 15.12.2009 before the trial Court, the petitioners – plaintiffs are permitted to examine the witnesses as per their application at Exh. 91. The witness shall be kept present before the Court on date fixed for said purpose by it privately by the petitioners – plaintiffs and on that date, they shall proceed with his examination in chief. The respondent – defendant will be at liberty to cross examine the witnesses on that date. Thereafter if the respondent – defendant find that he needs to examine himself or adduce any evidence in defence, it will be open to the respondent – 4 defendant to proceed further accordingly. Subject to this, the impugned order dated 17.07.2009 is quashed and set aside. If the costs are not paid/ deposited by 15th December 2009, the trial Court shall be free to deliver judgment in accordance with law in the matter. Writ Petition is disposed of accordingly. JUDGE *GS.