1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5597 OF 2008 Smt.Shantabai Rajarathinam. ..Petitioner. V/s. Shri Abdul Quddus Haji Abdul Razzak & Ors. ..Respondents. Mr.Sagar Kasar for Petitioner. Mr.J.S.Kini i/b. Shri Suresh Dubey for Respondent Nos. 1(a) to 1(g) and 2,3 & 4. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 27, 2008. DATE : AUGUST 27, 2008. DATE : AUGUST 27, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Even if the Petitioner may be justified in contending that the trial Court ought to have exercised inherent jurisdiction in recalling the Order passed on 17th June, 2008 and to decide the Application Exh.42 afresh on its own merits, which was dismissed for default of the Advocate for the Petitioner; in the fact situation of the present case, I am in agreement with the argument of the Counsel for the Respondent that the said Application was not bonafide application but was filed to ensure that the hearing of the suit does not proceed further 2 before the same Judge. That position emerges from the events that unfolded on or after 31st January, 2008. 3. On 31st January, 2008, the Suit was fixed for cross-examination. As none appeared for the Petitioner, the trial Court had no option but to pass "no cross order". The Petitioner moved the trial Court on 5th February, 2008 for setting aside no cross order which request was accepted by the trial Court on 20th February, 2008. On that date itself cross-examination of the P.W.1 took place. The trial was then deferred to 18th March, 2008. However, no attempt was made by the Petitioner to produce evidence of the Petitioner. In the circumstances, the trial Court treated the evidence of the Petitioner as closed. Thereafter, the Petitioner moved Application Exh.38 purportedly to carry out necessary typographical error crept in the evidence recorded during the cross-examination of the P.W.1. That application was filed on 31st March, 2008, which however, was rejected on 7th April, 2008. The Petitioner has not challenged the Order passed on 7th April, 2008. The same has been allowed to become final. The Petitioner thereafter, moved the application on 19th April, 2008 before the trial 3 Court Exh.39 pointing out that he was desirous of changing her advocate. That application was rejected and the matter was adjourned to 22nd April, 2008 for final argument. Once again even this Order has not been challenged by the Petitioner and has been allowed to become final. On 22nd April, 2008 the Petitioner appeared through the new advocate before the trial Court and filed Application Exh.40 praying for setting aside the Order of "no evidence of Petitioner" recorded by the trial Court on 18th March, 2008. That application has been rejected by the trial Court. Even that order has become final and has not been challenged by the Petitioner. The Suit was then deferred to 3rd May, 2008 for oral argument. However, the trial Court Judge was unavailable for judicial work on that date. As a result, the hearing of Suit was deferred. The Petitioner then moved the subject application Exh.42 seeking amendment to the Written Statement in respect of two matters. Firstly, for correction of typographical error in the evidence which application was already rejected; and secondly to introduce so-called subsequent events after institution of the Suit which would make the Respondent/Plaintiff ineligible for decree of possession. That application Exh.42 was filed on 13th June, 2008, 4 which came to be rejected on 17th June, 2008 by the impugned order. 4. Indeed, the Petitioner immediately moved the trial Court Judge for recalling of the said order. However, that request has been rejected on 18th June, 2008 on the reasoning that the Small Causes Court has no power to review its own order. It may appear that the Petitioner has challenged the Order dated 17th June, 2008 and 18th June, 2008, which are rejecting the Petitioner’s Application Exh.42 on the ground of default and then to hold that the Court has no power to review its own order. However, the matter does not end at that. The Petitioner had moved the District Court praying for transfer of the Suit pending before the present trial Court Judge to some other Judge of competent jurisdiction. That application was filed on 24th April, 2008. That request of the Petitioner has been rejected on 7th July, 2008. It is only thereafter, the Petitioner has chosen to file present Petition on 24th July, 2008 questioning the correctness of the Order passed on 17th June, 2008 and 18th June, 2008. 5. Considering all the developments appearing from the record, it is amply clear that the effort of 5 the Petitioner was to protract the proceedings and in any case to get the suit transferred from the present trial Court Judge to some other Judge. If this is the approach of the Petitioner and more particularly, having allowed earlier orders to become final whereby recording of evidence of the Petitioner has been closed, the attempt of the Petitioner to carry out amendment in the Written Statement was to reopen the trial and to protract the same for obvious reason. For the time being, suffice it to observe that because of the conduct of the Petitioner, no interference in exercise of writ jurisdiction under Article 227 of the Constitution is warranted. 6. Hence Petition is dismissed. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)