1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 903 OF 2009 Sharif Hasan Abdul Rauf ... Appellant v/s 1. Khan Mohammed Safi Chuller @ Chaudhary & anr. ... Respondents ALONGWITH APPEAL FROM ORDER NO. 904 OF 2009 Anwar-Ul-Haque Hasan Raja ... Appellant v/s 1. Khan Kamrujamma s/o Roshan Jama and anr. ... Respondents Mr.M.V.Holamagi for the appellant in both appeals. Mr.Anil R. Sharma for the respondent No.1. Smt.K.K.Soraan for the respondent No.2 Corporation. CORAM: SMT.NISHITA MHATRE, J. DATED: 17TH NOVEMBER, 2009 P.C.: 1. The appeals from order have been preferred against the order dated 4.7.2009. By this order the application by 2 defendant No.2, for setting aside the order directing that there would be no cross-examination from defendant No.2, has been rejected. 2. It is the case of the learned advocate for the appellants that, on 20.6.2009 the cross-examination of the plaintiff could not be conducted on behalf of defendant No.2 as he could not remain present in Court when the matters were called. He contends that he was unable to do so in view of an order passed by this Court on 17.6.2009 in Writ Petition No. 2359 of 2009. By this order, which is dated 17.6.2009, the learned advocate had assured the Court that he would attend the Court Receiver’s office on Saturday, the 20th June, 2009 at 11.00 a.m. 3. The present matters in the City Civil Court had been adjourned to 20.6.2009 on 2.5.2009. Therefore, before making any commitment to this Court, the advocate was well aware that he was required to be present in the City Civil Court to attend the present suits which have been expedited by the Court on the said date i.e. on 20.6.2009. 4. I have perused the roznama of both the cases. It appears that defendant No.2 was added as a party 3 defendant, after filing of the suit. The matters have been adjourned from time to time in order to permit the learned advocate to cross-examine the witness for the plaintiff. The roznamas indicate that the suits have been expedited by this Court. The defendant No.2 has been given ample opportunity to cross-examine the plaintiffs’ witness. It appears, however, that on many occasions the learned advocate for the defendant No.2 has been absent and this has hindered the progress of the trials. On 25.2.2009 again the Trial Court had refused to permit the defendant No.2 to cross-examine the witness in view of the fact that no cross order had been passed. However, after considering the arguments and the fact that the absence of the advocate for the defendant No.2 should not prejudice his case, an opportunity was granted to the defendant No.2 to cross- examine the witness on payment of costs of Rs.500/-. Accordingly, the “no cross” order passed on 31.1.2009 was recalled. The matter was then adjourned to 18.4.2009. It appears that, on that day the Court was not present and the matter was adjourned to 2.5.2009. Even on that day the advocate for the defendant No.2 was not present. The matter was then adjourned to 20.6.2009 for recording the evidence and a last chance was given to the defendant No.2 to cross- examine the witness. On 20.6.2009, the advocate for 4 defendant No.2 was absent as usual. This led to the learned Judge passing the order for no cross-examination. It appears that, on that day an application was preferred by the advocate for the appellants for recalling the order. This was vehemently opposed by the plaintiffs’ advocate and the impugned order was passed. 5. The learned Judge has considered the fact that the advocate for the defendant No.2 has been absent consistently, despite being accommodated by the Court by adjourning the matters time and again. The learned Judge has observed that the advocate has remained absent on most days without any bonafide reason and, therefore, it was necessary for him to pass the impugned orders. 6. A perusal of the roznama indicates that the suits which have been pending from 2004 and which has been expedited by this Court, have been delayed only because of the conduct of the advocate for the defendant No.2. The contention that it was necessary to comply with the order of the High Court in Writ Petition No.2359 of 2009 and, therefore, it was not possible to attend the Trial Court, also cannot be accepted. There is no indication in the Court Receiver’s report which has been produced by the learned advocate to suggest that 5 the matter proceeded for the entire day before the Court Receiver. There is no indication either, that the advocate was unable to attend the Court in Dindoshi on that day because of the High Court’s order. Although no directions were issued by this Court on 17.6.2009 to the learned advocate, he has complied with the assurance given to the High Court to be present before the Court Receiver. While assuring the Court that he would do so, the advocate ought to have noted that he had a matter fixed much earlier, before the Trial Court on the same day and, therefore, would not be able to attend the Court Receiver’s office. There is nothing on record to suggest that he had made any application to this Court to place the matter on some other day before the Court Receiver. 7. However, it appears that the advocate did reach the Trial Court on the aforesaid date i.e. on 20.6.2009 after the matter was adjourned and directions were given that the matter should proceed without the cross-examination by defendant No.2. The application for recalling the order was made on the same day. 8. Having considered the submissions of the learned advocates for both parties, the conduct of the advocate for 6 the defendant No.2 cannot, in any manner, be justified and in fact must be deprecated and condemned. However, in order to ensure that no prejudice is caused to defendant No.2 for the negligence of his advocate, that the impugned orders can be set aside on certain terms and conditions. 9. Accordingly, the impugned orders are set aside on the following terms:- (i) The Trial Court will permit defendant No.2 to cross- examine the plaintiffs’ witness only on condition that the defendant No.2 pays costs of Rs.5000/- to the plaintiff in each case on or before 21.11.2009 on which date the matter has been fixed before the Trial Court. (ii) The Trial Court will permit cross-examination of the plaintiffs’ witness on that day. Cross-examination shall not be adjourned on the count that either the defendant No.2 or his advocate is unable to attend the Court for any reason whatsoever. (iii) The cross-examination must be conducted on 21.11.2009 or any other date, according to the convenience of the Trial Court. 7 10. Appeals from order stand disposed of accordingly. 11. Civil application Nos.1110 of 2009 and 1111 of 2009 also stand dismissed in view of disposal of the appeals from order. ..... 8