1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10353 OF 2009 Shrinivas M. Malu .. Petitioner versus Gulabchand M. Malu .. Respondent Mr.R.S.Alange for the for the petitioner. Mr.P.M.Arjunwadkar for the respondent. CORAM : A.S.OKA, J. DATE : 23rd February 2010. P.C.: . Heard learned counsel appearing for the parties. Petition is taken up for final disposal. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 10th August 2009 passed by the trial Court. The respondent is the plaintiff and the petitioner is the defendant. An application was made by the petitioner at Exhibit 77 praying for setting aside the order of “No Cross” passed by the trial Court thereby preventing the petitioner from cross-examining the respondent. The said application was opposed by the respondent by pointing out that even earlier, such order was passed which was set aside on 2nd May 2006 subject to costs of Rs.1,000/-. But, thereafter, no cross-examination was not made by the petitioner. The learned trial Judge by the impugned order rejected the said application by holding that the application has been belatedly made and the petitioner was not sincere. 2 2. The learned counsel appearing for the petitioner submitted that cross- examination could not be conducted earlier as the Court was dealing with issues relating to valuation of the suit and jurisdiction. Reliance is placed on order dated 4th August 2008 passed by this Court in writ petition filed by the respondent dealing with controversy of the valuation of the suit. The learned counsel appearing for the petitioner submitted that an opportunity deserves to be granted to the petitioner. The learned counsel appearing for the respondent opposed the petition by pointing out that this is a case of gross negligence on the part of the petitioner. He pointed out that affidavit in lieu of examination-in-chief is filed in March 2005 and now it is unjust to permit the petitioner to cross-examine the respondent. 3. I have given careful consideration to the submissions. It is true that earlier an order was passed by the trial Court preventing cross-examination of the respondent by the petitioner. The said order was set aside on 2nd May 2006. However, it appears that thereafter the trial Court dealt with the issue of valuation of the suit as well as the issue of jurisdiction. The matter came to this Court by way of Writ Petition No.5658 of 2008 which was disposed of on 4th August 2008. It is true that there is a delay on the part of the petitioner. The suit is for possession of immovable property. The parties are real brothers. Considering this aspect, one more opportunity deserves to be granted to the petitioner to cross- examine the respondent. The petitioner will have to pay costs quantified at Rs. 7500/-. A demand draft in the said amount has been handed over by the learned 3 counsel appearing for the petitioner to learned counsel appearing for the respondent in the Court. 4. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 10th August 2009 is quashed and set aside. (b) The application at Exhibit 77 is allowed. (c) It is made clear that the petitioner will proceed with the cross- examination of the respondent on such date as may be fixed by the trial Court and the petitioner will not be entitled to seek adjournment on unreasonable grounds. (d) Hearing of the suit is expedited and the trial Court shall endeavour to decide the suit on or before 31st August 2010. (e) The petition is allowed in above terms. (f) The petitioner has already paid costs of Rs.7500/- to the respondent. (A.S.OKA,J)