wp6119.10.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.6119/2010 Ankush Namdeorao Kalhane and another -vs- Namdeorao Shankarshaha Kalhane and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri V. M. Deshpande, the learned counsel for the petitioners. Shri P. N. Shende, the learned counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : 06.09.2011. Heard. By this petition, the petitioners impugn the order passed by the trial Court on 25/11/2010 rejecting an application filed by the petitioners for expunging and ignoring the cross-examination of defendant No.2 effected by the defendant No.5. The petitioners are the original plaintiffs. A suit was filed by the plaintiffs for partition, separate possession and permanent injunction. The plaintiffs pleaded that the respondent Nos.1 to 4 were the relatives of the plaintiffs and the respondent No.5 had purchased a part of the suit property from the respondent Nos.1 to 4. After the defendant No.2 had examined himself, the defendant No.5 sought permission of the Court to cross-examine the defendant No.2. The trial Court wp6119.10.odt 2/3 granted the permission and the defendant No.5 cross-examined the defendant No.2. The plaintiffs, thereafter filed an application for expunging the cross-examination of the defendant No.2 as effected by the defendant No.5. The trial Court by the impugned order dated 25/11/2010 rejected the application. The order passed by the trial Court on 25/11/2010 appears to be just and proper. The defendant Nos.1 to 4 had filed a common written statement and the defendant No.5 had filed a separate written statement. Though the defendant No.5 had denied the claim of the plaintiffs and the defence of the defendant Nos.1 to 4 on one hand and the defence of the defendant No.5 on the the other hand, were somewhat similar, the defendant No.5 had pleaded that he was a bona fide purchaser for value. In such circumstances, the trial Court held that the interest of the defendant Nos.1 to 4 and the defendant No.5 cannot be said to be the one and the same. The trial Court held that the interest of the defendant No.5 was adverse to the plaintiffs and to certain extent, adverse to the respondent Nos.1 to 4 also. In such circumstances, the trial Court was justified in rejecting the application filed by the petitioners. The submission made on behalf of the petitioners that the defendant No.5 cross-examined the defendant No.2 without notice to the petitioners and behind the petitioners’ back does not appear to be correct as it is observed in para – 6 of the impugned order that the cross-examination of the defendant wp6119.10.odt 3/3 No.2 was conducted by the defendant No.5 in the presence of the petitioners and their Advocate. The impugned order does not suffer from any illegality so as to interfere with the same in exercise of the writ jurisdiction. The judgments reported in AIR 1978 Andhra Pradesh 193, AIR 1981 Gujarat 190 and 1986 BCI 95 and relied on by the counsel for the petitioners cannot be made applicable to the facts of this case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE