1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1693 OF 2009 1. Raosaheb s/o. Shripati Naiknaware, Age 40 yrs., Occu. Agri., R/o. Lasona, Tq. & Dist. Osmanabad. 2. Dattatraya s/o. Shripati Naiknaware, Age 46 yrs., Occu. Agri., R/o. Lasona, Tq. & Dist. Osmanabad. ....Petitioners. (Ori. plaintiffs) Versus 1. Vishnu s/o. Shripati Naiknaware, Age 43 yrs., Occu. Agril., R/o. Lasona, Tq. & Dist. Osmanabad. 2. Sumanbai w/o. Sopanrao Yadav, Age 52 yrs., Occu. Money Lending & Household, R/o. Lasona, Tq. & Dist. Osmanabad. ....Respondents. (Ori. defendants) Shri. P.B. Rakhunde, Advocate for petitioner. Shri. S.T. Ghute, Advocate for respondent Nos. 1 and 2. CORAM : R.K. DESHPANDE, J. DATE : 3rd August, 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 18.12.2008, passed 2 below Exh. 21, by the learned Joint Civil Judge, Senior Division, Osmanabad in Special Civil Suit No. 16/2005. By this order, the learned Joint Civil Judge, Senior Division, Osmanabad has rejected the application Exh. 21, filed by the petitioner/plaintiff for setting aside the order passed by the Court, closing the evidence of the plaintiff. 2. Notice in this matter was issued on 23rd March 2009. Respondents are served. Shri. Ghute appears for the respondent Nos. 1 and 2. The learned counsels for the parties agree that the matter can be finally disposed of at the stage of admission. Hence, Rule, returnable forthwith. 3. From the order dated 18.12.2008 impugned in this petition, it is apparent that cross examination of the plaintiff was recorded on 6.10.2008 and the matter was further kept for evidence of the plaintiff on 15.10.2008. At the request of plaintiff, the matter was adjourned to22.10.2008. On that date none appeared for the plaintiff. Therefore, the matter was adjourned by passing an order below Exh. 1, and the case of the plaintiff is closed for evidence and the matter was fixed for evidence of the defendant on 17.11.2008. On 17.11.2008 the matter was adjourned at the request of defendant and it was fixed for evidence on 29.11.2008. Again on that date the matter was adjourned and it was fixed for evidence of defendant on 15.12.2008. The defendant has been examined on that date and the matter was fixed for cross examination of the 3 plaintiff. At the aforesaid stage, the application was moved by the plaintiff for setting aside the order passed by the Court below Exh. 1, closing the evidence of the plaintiff. It was opposed by the defendant, stating that the matter was adjourned on several occasions and the evidence of the defendant is over. The Trial Court has held that the application moved by the plaintiff was not supported by any medical certificate or affidavit, the reasons stated were vague and the plaintiff was negligent in prosecuting the matter. It has been held that the plaintiff cannot take advantage of its own mistakes and if, the application is allowed, it will not only defeat the purpose of amended provisions of Civil Procedure Code, but tends to hurdle in speedy justice. Hence, with these findings, the application was rejected. 4. It is not in dispute that the matter was not only adjourned at the instance of plaintiff, but it was also adjourned at the instance of defendant. It is true that the application was not supported by the medical certificate, although it was stated in the application that the petitioner was suffering from fever. However, on that count, the Court could not reject the application. At the most, the plaintiff could have been saddled with the cost. Even after passing of an impugned order of closing the case of the plaintiff for evidence, the matter was adjourned at the instance of the defendant. Therefore, the Trial Court should have considered the application and should have set aside the order below Exh. 1, closing the evidence of plaintiff. The Trial Court has acted on its 4 jurisdiction with material irregularities resulting in failure of justice. The order impugned, therefore, cannot be sustained. 5. In the result, the writ petition is allowed. The order dated 18.12.2008 passed by the Trial Court, rejecting the application, Exh. 21, is hereby quashed and set aside. The application Exh. 21, filed by the petitioner/plaintiff is allowed. The Trial Court shall permit the plaintiff to lead the evidence and also permit the plaintiff to cross examine the defendant and his witnesses. The plaintiff shall, however, pay cost of Rs. 500/- (Rs. five hundred) to the defendant on the next date of hearing before the Trial Court. The parties shall appear before the Trial court on 6th of September 2010, on which date the plaintiff shall pay cost of Rs. 500/- to the defendant. Rule is made absolute in these terms. No order as to costs, so far as this writ petition is concerned. [ R.K. DESHPANDE, J. ] ssc/wp1693.09