jpc wp8369-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.8369 OF 2011 Tulshiram Kanna Gangare and others ... Petitioners Versus Dashrath Govind Gangare and others ... Respondents Ms. Gauri Godse for the petitioners Mr. Rahul M. More for the respondents CORAM: R. M. SAVANT, J. DATED : 29th November, 2011 P.C. : 1. Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition takes exception to the order dated 8th September, 2011 passed by the learned III Civil Judge, Junior Division, Panvel by which order the application Exh. 79 filed by the original defendant Nos. 2 to 19 for setting aside the "no cross order" passed on 23rd June, 2011, in so far as plaintiff is concerned, was rejected. It is required to be noted that the said application has been rejected by the trial Court on the ground that in spite of the “no cross order” being passed on 23rd June, 2011, no steps were taken by the said defendants jpc wp8369-11.sxw 2 for setting aside the said order and after a gap of 2/3 dates, that the present application which the impugned order came to be passed was filed. 3. The petitioners herein i.e. the defendant nos. 2 to 19 in Regular Civil Suit No. 69 of 2006 have set out the chronology of dates in para 8(a) of the petition. As per the said chronology, the suit had appeared on Board on 22nd October, 2010 when the application Exh.68 for production of documents was filed by the plaintiff. The said application came to be rejected on 13th June, 2011 and the suit in question was posted for cross examination on 27th June, 2011. On the said date, the plaintiff filed application Exh. 72 for re-examination and the same was granted and at the request of the petitioners, the suit was posted for cross examination of the respondent No.1 on 8th February, 2011. On 8th February, 2011, hearing was adjourned at the request of the plaintiff by the application made by him at Exh.75 to 3rd March, 2011. On 3rd March, 2011, the defendants were represented by the Advocate, however, the plaintiff’s advocate was absent. Hence hearing was adjourned to 21st April, 2011. On 21st April, 2011 hearing was again adjourned at the request of respondent no.1 to 23rd June, 2011. On 23rd June, 2011, application Exh.77 came to be filed by the defendants for seeking adjournment, however, the said application jpc wp8369-11.sxw 3 was rejected on the ground that the defendants are taking adjournment on one pretext or the other and the " No Cross Order " was passed against the petitioners. Therefore, the instant application Exh.79 was filed, which has been rejected by the impugned order dated 8th September, 2011. 4. Heard learned counsel appearing for the parties. 5. In the conspectus of chronology of the events as mentioned above, the trial Court has firstly erred in passing the order dated 23rd June, 2011 application Exh.77 by observing that the defendants i.e. the petitioners herein are taking adjournments on one pretext or the other. The chronology of dates, as mentioned herein above, unmistakably points out that most of the adjournments have been sought by the plaintiff. In so far as the order passed on application Exh.79 is concerned, the said order can only be said to be a consequence of the earlier order passed on 23rd June, 2011 as the learned judge, in view of the earlier order perforce was required to reject the application Exh.79. It is trite that a party should be allowed to prosecute the proceedings on merits rather than being non suited on some technical ground. May be there some inconvenience would be caused to the plaintiff, who is more than 78 years old however, on the said ground, the defendants cannot be deprived of the right to cross examine him. More so, in the jpc wp8369-11.sxw 4 light of the aforesaid chronology of events, it is not a case where, there is gross indolence or negligence on the part of the defendants in prosecuting the said suit. In that view of the matter, the order dated 23rd June, 2011 passed on Exh.77 and the impugned order dated 8th September, 2011 passed on Exh.79 would have to be quashed and set aside and are accordingly quashed and set aside. Resultantly, the defendants would be entitled to cross examine the plaintiff. 6. The parties to appear before the trial Court on 12th December, 2011. If the suit is not already fixed on a date which is earlier to that date, the trial Court to fix a date for cross examination, either on 12th or on the earlier date. The learned counsel for the petitioner states that the defendants would endeavour to complete the cross examination on the same day on which it is fixed. 7. In my view, the interest of justice would also be served, if the defendants are directed to pay costs of Rs.1000/- to the plaintiff in the trial Court and obtain a receipt for the same. 8. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. (R. M. SAVANT, J.)