1 S.A. 505/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 505/2010 WITH CIVIL APPLICATION NO. 10990/2010 1 Shri Maqsood Ahmad Sk. Gulam Rasool, Age : 32 years, Occu. Business. 2 Smt. Salimabai w/o Gulam Rasool, Age : 57 years, Occu. Nil, Both are at Kaosda, Tal. Erandole, Dist. Jalgaon. Appellants. (Ori. Defendants) Versus Shri Abdul Latif Sk. Vajir, Age : 62 years, Occu Pensioner, R/o Nashirabad, Taluka and Dist. Jalgaon. Respondent (Ori. Plaintiff.) ..... Shri M.M. Bhokarikar, Advocate for appellants. Mr. V.B. Patil, Advocate for respondent sole. ..... CORAM : S.S. SHINDE, J. DATED : 14 th December, 2011. ORAL ORDER: 1. This second appeal takes exception to the judgment and order passed by Adhoc District Judge – 2, Jalgaon on 29/03/2010 in R.C.A. No. 77/2005 thereby confirming the judgment and order passed by Civil Judge (Junior Division), Erandol in R.C.S. No. 57/2001. 2 S.A. 505/2010 2. Ld. counsel appearing for the appellant would submit that the valuable rights of the original defendants to cross examine the plaintiff has been taken away by the impugned order. Ld. counsel would submit that, even the plaintiff and his advocate were not present on the date when the ld. judge passed order forfeiting rights of the appellants to cross examine the plaintiff. The ld. counsel invited my attention to the ground taken in second appeal. He submitted that opportunity may be given to the appellants to cross examine the plaintiff. He further submitted that the appellants are ready to cross examine the plaintiff on the date which will be fixed by the trial Court. According to the ld. counsel appearing for the appellants, second appeal deserves consideration. 3. On the other hand, the counsel appearing for the respondent / original plaintiff submits that the suit was filed in the year 1999. The order forfeiting rights of the defendants to cross examine plaintiff is passed on 26/02/2003. The plaintiff is deprived from enjoying possession of the suit property. He further submits that the plaintiff may be put in possession. He further submits that the appellant may be asked to give undertaking that, if the plaintiff succeeds in the suit, in that case, immediately the appellants should hand over possession of the suit property to the original plaintiff. According to the counsel for respondent, the second appeal is devoid of any merit, same be dismissed. 4. Upon hearing ld. counsel appearing for the parties and on perusal of grounds taken in second appeal, following substantial questions of law will fall for consideration of this Court, in the present second appeal. I) Whether the trial Court was correct in forfeiting the right of the appellants i.e. original defendants to cross examine the plaintiff 3 S.A. 505/2010 on the date on which the plaintiff himself and his advocate was absent ? II) Whether because of the order passed by the trial Court, forfeiting right of the appellants of cross examining the plaintiff, opportunity / right of the party to contest the suit is taken away ? 5. On the above mentioned substantial questions of law, admit the second appeal. 6. On admission, ld. counsel appearing for the respondent sole waives service of notice for the respondent. 7. Ld. counsel appearing for the appellants and also counsel appearing for the respondent submits that the matter can be disposed of finally. It is not in dispute that the copy of the roznama is produced on record. From the perusal of the copy of the roznama on the date on which the order forfeiting right of the defendants to cross examine the plaintiff came to be passed, on that date neither plaintiff nor his advocate remained present. The defendant and also his advocate remained absent. Therefore, on the said date, the plaintiff was not available for cross examination of the defendant. Therefore, in absence of the plaintiff to pass order forfeiting the right of the defendants to cross examine the plaintiff, can not be sustained. That apart, the valuable right of the party to cross examine the plaintiff, can not be taken away that too when plaintiff himself was not present for the cross examination by the defendant. Therefore, in my considered opinion, the second 4 S.A. 505/2010 appeal deserves to be allowed. However, it is necessary to clarify that the date which whould be fixed by the trial Court for cross examination of the plaintiff, on said date the defendant shall cross examine the plaintiff without asking further adjournment. The second appeal is disposed of on above terms. The parties will appear before trial Court on 10/01/2012. The trial Court will fix the date for cross examination of the plaintiff. On that date without fail, the counsel for the defendant will cross examine the plaintiff. ( S.S. SHINDE, J. ) ts k/2011/Dec14/sa505.10