( 1 ) wp6060.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6060 OF 2011 Nitesh s/o. Baburao Pawar .. Petitioner Versus Pushpamala w/o Gopinath Nalawade .. Respondent Mr. S.G. Dodya, Advocate for the petitioner; Mr. A.D. Kasliwal, Advocate for sole respondent. CORAM : A.V. NIRGUDE, J. DATED : 30.09.2011 P.C. :- 1. This writ petition filed under Article 226 and 227 of the Constitution of India challenges two orders dated 09.06.2006 and 04.01.2011 refusing permission to the petitioner/plaintiff to lead further evidence in support of his case. 2. The facts of the case in short can be narrated as under :- 3. The petitioner/plaintiff filed a suit for specific performance way back in 2004. He said that the respondent/defendant agreed to sell him certain immovable property vide an agreement for sale of 1998. It seems that the respondent/defendant denied the execution of the document itself. The suit reached the stage of recording of the evidence sometime in February, 2005. On 5th ( 2 ) wp6060.11 February, 2005, the petitioner/plaintiff filed his own affidavit in support of his case. It was accepted on record as the examination-in-chief. The respondent/ defendant cross-examined the petitioner/plaintiff on 16th December, 2005. Thereafter, on 7th January, 2006, the petitioner/plaintiff sought witness summons for attesting witness of the suit document. Same was allowed and summons was issued. On 20th April, 2006, the Court found that the witness summons was not served. On that day the petitioner/plaintiff made another application for re- issuing the summons, which was allowed on payment of costs of Rs.500/-. The petitioner/plaintiff did not pay costs, so the summons was not issued. On 9th June, 2006, since the petitioner/plaintiff did not remain present, the learned Judge of the Trial Court passed the impugned order forfeiting his right to lead further evidence. The petitioner/plaintiff did not thereafter take any evasive steps for setting aside of the order. He even did not make an application to the learned Judge of the Trial Court for setting aside of this order, seeking permission to deposit the costs which was imposed on him on 20th April, 2006 etc. Practically, the petitioner/plaintiff acquiesced to the effect that after 9th June, 2006, he would no longer be able to lead further evidence in this case. In August, 2006, the respondent/defendant started leading his evidence. The petitioner participated in the ( 3 ) wp6060.11 trial and his advocate cross-examined the respondent/ defendant partly. For some reason the cross-examined remained unfinished and thereafter the progress in the suit got stalled, because of certain writ petitions filed in this Court. 4. On 7th March, 2007, for the first time the petitioner/plaintiff made an application to the learned Judge of the Trial Court that he wishes to lead further evidence in his case and permission to lead further evidence be given to him. On 4th January, 2011, his application was rejected by the impugned order. 5. The learned Counsel appearing for the petitioner asserted that in the interest of justice both the impugned orders deserve to be set aside. He also suggested that it is probably the in-act handling of the case by the learned advocate at various stages, the petitioner/plaintiff had suffered the loss. I am afraid, even though this could be true, I am not inclined to show leniency to the petitioner because the petitioner/plaintiff acquiesced to the fact that he would not be able to lead evidence after 9th June, 2006 and thereafter participated in the Trial. This participation was quite crucial because it was cross-examination of the respondent/defendant. Thereafter, the petitioner cannot be allowed to go back to the stage when his right to lead evidence was forfeited. The impugned order dated 9th ( 4 ) wp6060.11 June, 2006, cannot therefore be set aside. The impugned order dated 4th June, 2011 is also unassailable if one concedes to be fact that the petitioner/plaintiff is unable to get the order dated 9th June, 2006, set aside. The petition, therefore, should fail. The petition is dismissed. The amount deposited by the petitioner as per order of this Court dated 18.08.2011 be refunded to him or his advocate. [A.V. NIRGUDE, J.] snk/2011/SEP11/wp6060.11