1 Wp no.3108/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3108 of 2010 Mahesh Kantilal Bhayani & ors. ... Petitioners versus Pratik Builders and ors. ... Respondents ... Ms.Leena Patil for the petitioners. Mr.R.D.Suryawanshi for the respondent no.2. CORAM : D.G. KARNIK, J. DATED : 21st July 2010 P.C. 1. Rule, returnable forthwith. Mr.Suryawanshi waives service for the respondent. 2. By this petition, petitioners challenge the order dated 10 December 2009 refusing the petitioners’ request to permit them to examine Mr.Rashmikant Kuvadia as a witness. Petitioner no.1 is the original defendant no.1. After examining himself as a witness, he did not forthwith produce the next witness nor filed any affidavit in lieu of examination in chief of the next witness. On 15 February 2009, he through his counsel, requested the Court to grant one more opportunity 2 Wp no.3108/10 and promised that he would examine the witness on the next date or file a purshis of closure of his evidence. Accordingly, the matter was adjourned to 11 November 2009. On the adjourned date, contrary to the promise made by him, he did not produce the witness nor filed a purshis of closure of his evidence, but again applied for adjournment which was rejected and the court proceeded to record the evidence on remaining defendants. Thereafter, on 27 November 2009 he sought the permission to lead the evidence of Mr.Rashmikant Kuvadia as stated earlier. These facts have been recorded by the learned Judge in his judgment. They clearly show that petitioner was avoiding to examine the witness and was playing the game of hide and seek. However, in the interest of justice and in order to avoid any future remand on the ground of denial of reasonable opportunity, it would be appropriate to grant opportunity to the petitioner to adduce the evidence but subject to payment of substantial costs. The costs have to be exemplary on account of the conduct of the petitioner which is recorded by the trial court. For these reasons, I pass the following order:- O R D E R 3. Writ Petition is allowed. Impugned order is set aside and petitioner is permitted to examine Mr.Rashmikant Kuvadia as a witness subject to payment of costs of Rs.25,000/- as a condition precedent. Costs shall be deposited in the trial Court within two weeks. Respondents are permitted to withdraw the costs so deposited. In the event costs as aforesaid are not deposited within two weeks, the writ petition shall stand dismissed and the Rule shall stand discharged without further reference to the Court. 3 Wp no.3108/10 4. It is clarified that after the affidavit in lieu of examination in chief of the witness is taken on record, the witness shall attend the court on every date to which the case may be adjourned till his cross examination is over and in the event he remains absent on any date, the Court shall close his evidence and discard the affidavit tendered by him. (D.G. KARNIK,J.)