1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8726 OF 2009 Devidas s/o. Dattatraya Patil, Age 68 yrs., Occu. Agril., R/o. Uple (M), Tq. & Dist. Osmanabad. ....Petitioner. Versus 1. Sou. Sonubai w/o. Amrushi Patil, Age 65 yrs., Occu. Household, R/o. Uple (M), Tq. & Dist. Osmanabad. 2. Amrushi s/o. Dattatraya Patil, Since died, through his L.Rs. 2-A. Sou. Prabhawati w/o. Chandrakant Patil, Age 53 yrs., Occu. Household, R/o. Sangvi, Tq. and Dist. Osmanabad. ....Respondents. Shri. V.S. Tanwade, Advocate for the petitioner. Shri. S.G. Chapalgaonkar, Advocate for respondent Nos. 1 and 2. CORAM : R.M. BORDE, J. DATE : 31st March, 2010 ORAL JUDGMENT : 1. Heard respective counsel appearing for parties. 2. Rule. With the consent of parties, the petition is taken up for final 2 disposal at the admission stage. 3. The order passed by the 3rd Joint Civil Judge, Senior Division, Osmanabad on 16.9.2009 is subjected to challenge in this petition. 4. The petitioner is the original defendant in a suit instituted by the respondent No. 1, claiming a decree in respect of recovery of immovable property. The suit is presented by the respondent No. 1/original plaintiff in the year 2006 and the same is stated to be pending till today. It transpires on perusal of the petition that the issues in the matter are settled and the suit is at the stage of recording evidence. The plaintiff has tendered his evidence in the form of affidavit in the year 2006 itself. The defendants sought adjournments on a few occasions for cross- examining the plaintiff. The Court has entertained the request and permitted adjournments. However, argument advanced is that when such repeated requests are made, the Trial Court ultimately rejected the application on 21.11.2007 and passed an order of no cross examination. The suit was directed to be posted for evidence of defendant No. 2. The defendant thereupon presented an application, Exh. 48, on 9.1.2008, requesting the Court to recall the order of "no cross" passed against defendant No. 1 and further, to permit the defendant to cross examine the plaintiff and his witnesses. The Trial Court, however, considering the past instances, refused to grant indulgence in favour of plaintiff. 3 5. I have heard arguments advanced by learned counsel for respective parties as well as perused impugned order passed by the Trial Court. It is tobe noted that the suit instituted by plaintiff is for recovery of immovable property. It is true that the defendant is possessed of the property and benefited by prolonging the litigation. However, with a view to have proper contest on merits, I deem it appropriate to grant one more opportunity to the defendant to place his contentions before the Court, subject to payment of costs. 6. The plaintiff shall keep himself and his witnesses present on 19th April 2010 before the Trial Court. On the given date, the defendant shall proceed to cross examine the plaintiff and his witnesses. If the cross examination of the witnesses remain incomplete on the due date, the matter shall be posted on the next day and the defendant shall complete the cross examination of the plaintiff and his witnesses. No further request for adjournment of the matter be entertained. The defendant shall thereafter proceed to tender his evidence. The Trial Court shall as far as possible decide the pending suit preferably by the end of December 2010. The order passed by the 3rd Joint Civil Judge, Senior Division, Osmanabad on 16.9.2009 below application, Exh. 48 in R.C.S.No. 101/2006 is quashed and set aside, subject to deposit of cost of Rs. 3,000/- by the defendant/petitioner herein with the Trial Court before 19th of April 2010. On deposit of amount of cost, the plaintiff shall be entitled to withdraw the same. In the event of failure to deposit 4 the cost amount of Rs. 3,000/- with the Trial Court by the defendant/petitioner herein, this petition shall be deemed as dismissed. Rule is accordingly made absolute. [ R.M. BORDE, J. ] ssc/wp8726.09