1 WP3498.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3498 OF 2011 M/s.Solitaire Fashions & ors. ... Petitioners v/s The Needs of Life Co-operative Bank Ltd. & ors. ... Respondents Mr.Prashant Naik for the petitioners. Mr.P.S.Gidwani for respondent No.1. CORAM: RANJIT MORE, J. DATED: 3RD MAY, 2011 P.C.: 1. Heard Mr.Naik, the learned counsel for the petitioners and Mr.Gidwani, the learned counsel for respondent No.1. None appears for respondent No.2 though served. Respondent Nos.2 and 3 are formal parties. 2. The petitioner is the original disputant and the respondents are opponents. The dispute is pending in the Co-operative Court since the year 2002. The original petitioner has filed an affidavit of his evidence in the year 2 WP3498.11 2007 and he was under cross-examination. On 26.10.2010 he was not present for cross-examination by the respondents and, therefore, his evidence was declared as non-est. The petitioners, therefore, filed an application for setting aside this order. This application was however rejected on 17.1.2011. The revision application filed in the Co-operative Appellate Court also came to be dismissed and, therefore, the petitioners are before this Court. 3. Having considered the submissions and having perused the documents, I find the petitioner No.2 was not available for cross-examination on 30.6.2010, 16.7.2010, 2.8.2010, 11.8.2010, 7.9.2010, 20.9.2010. The matter was then adjourned to 28.9.2010. Again the petitioner No.2 was absent on 28.9.2010 and, therefore, by way of last chance, it was adjourned to 12.10.2010. On that day also petitioner No. 2 was absent and the case was adjourned for petitioner No. 2’s cross-examination on 26.10.2010. He again remained absent and, therefore, his evidence affidavit was declared non-est. 4. The explanation for remaining absent on 26.10.2010 is given by petitioner No.2 that he reached late on that day. So far as the absence on earlier three dates are concerned, the petitioner contends that the his daughter was not well. So 3 WP3498.11 far as other dates are concerned there is no explanation. 5. The facts mentioned above disclose that petitioner No.2 is grossly negligent in prosecuting his dispute. However, the fact remains that the evidence affidavit was filed in the year 2007 and he is under cross-examination since then. In these facts, I am inclined to take sympathetic view. If the petitioners affidavit evidence is declared non-est, the petitioners dispute will be dismissed. In these circumstances and in the interest of justice, I am inclined to give one more opportunity to the petitioner, subject to heavy costs to be paid to the respondent No.1. Mr.Naik, the learned counsel for the petitioners undertakes that henceforth his client will not be negligent and will co-operate in disposal of “dispute”. Undertaking accepted. 6. The petition is, therefore, disposed by passing the following order:- (i) The writ petition is allowed in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.25,000/- to be paid by petitioners to the respondent No.1 within a period of two weeks from today. (ii) The petitioner No.2 shall appear before the Trial 4 WP3498.11 Court on the next date of hearing to complete the cross- examination. (iii) The petitioner No.2 will not ask for any adjournment except in unavoidable circumstances. (RANJIT MORE, J.) 5 WP3498.11