spb/- 1 wp219-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 219 OF 2011 Dr. Tukaram Govinda Mane & Anr. ... Petitioners. V/s. Maujibhai Karmasi Patel & Anr. ... Respondents. ­­­­­ Mr. Pankaj R. Thatte for the Petitioners. Mr. S.M. Mirajkar for Respondent No.1. ­­­­­ CORAM : D. G. KARNIK, J. DATE : 29th JUNE, 2011. P.C. : 1 Rule. By consent, Rule is made returnable forthwith. Mr. Mirajkar waives services for the Respondents. Heard. 2 By this petition, the petitioners challenges the order dated 30th October, 2010 passed by the Civil Judge, Sr. Division, Kolhapur, rejecting the petitioners’ application for setting aside “No Cross” order and for permission to cross­examine the respondent (original plaintiff). 3 The respondent’s suit bearing civil suit no. 71 of 2008 was set down for cross­examination of the respondent on 6th October, 2010. On that spb/- 2 wp219-11.sxw date, the petitioners who are defendant nos. 1 and 2 were absent and therefore, the court passed an order of ‘No Cross’ and thereafter, closed the evidence of the plaintiff. On the next date, on 30th October, 2010 the petitioners through their Advocate made an application for setting aside the “No Cross” order. On 30th October, 2010 the court rejected the application on the ground that the petitioners and their Advocates were absent. 4 According to the petitioners, the petitioner no.1 was suffering from a life threatening heart disease and therefore, could not attend the court. Petitioner no.2 also, as his wife, was attending the petitioner no.1 and therefore, could not attend the court on 6th October, 2010 as well as 30th October, 2010. The petitioners have annexed to the petition a medical certificate alongwith the medical record. The medical record and medical certificate do show that the petitioner no.1 had 95% block in right coronary artery and underwent an angioplasty on 17th November, 2010. Considering the medical record, in my view, there was sufficient cause for the absence of the petitioners in the court on 6th October, 2010 as well as on 30th October, 2010. It is true that at least their Advocate ought to have remained present in the court but on account of a mistake of an Advocate, the petitioners may not be allowed to suffer especially if spb/- 3 wp219-11.sxw the respondents can be compensated sufficiently by costs. 5 In my view, in the present case, costs would have to be substantial because no reason about the absence of the Advocate has been pleaded in the petition as well as before the trial court. Further more the respondent who has appeared on notice has been required to incur expenditure of engaging an Advocate in this court. In the circumstances, in my view, costs of Rs.20,000/­ (Rs.Twenty thousand) would be adequate. Hence, I pass the following order : ORDER i Petition is allowed. ii Impugned order is set aside and the Application made by the petitioners at Exh.30 in the Trial Court (Exh. ‘D’) to the petition for setting aside “No Cross” order is allowed. iii The petitioners are permitted to cross­examine the respondent­ plaintiff, however, subject to the payment of costs of Rs.20,000/­ to the respondent as condition precedent. [D.G. KARNIK, J.]