Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.5131 of 2004 Shri Shankar Bhau Ghade Through his legal heirs Shri Harishchandra Shankar Gade ...Petitioners V/s. Shri Krishna Rama Musale & ors. ...Respondents Mr.J.M.Puranik for the Petitioners Mr.M.C.Moholkar, Advocate for Respondent no.1 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 9th April, 2008 : 9th April, 2008 : 9th April, 2008 P.C. . Heard the Learned Counsel for the Petitioners. 2. Rule. 3. Respondents waive service. As the Petition impugns an interlocutory order passed on 1-3-2004 and the trial of the suit has been stayed by this Court all along, this petition is taken up for final hearing forthwith. 4. The Petitioners had filed an application at exh.64 purportedly under Order XVIII Rule 17 read with Section 151 of CPC and the said application has been rejected by the impugned order. 5. A copy of the Roznama in RC Suit No. 112/94 has 2 been placed on record and it indicates that the defendant’s Advocate appeared on 2-7-1994 for the first time before the trial Court and filed W.S. on 16-7-1994. The Plaint was allowed to be amended by allowing the application at Exh.41 by the trial Court on 3-1-1998. On 26-2-2003 the Plaintiffs filed the affidavit of PW-1 Shri Musale by way of examination in chief. On the next date i.e. on 5-3-2003 the plaintiff and his Advocate were present and they filed at exh.61 a purshis for closing of the evidence. On the next two dates i.e. on 19-3-2003 and 9-4-2003, the Advocates for both the parties were absent. On 16-4-2003 the Advocate for the plaintiff closed his final arguments. On that day Shri Sajurkar,the learned Advocate appearing for the defendant remained absent and at exhibit 63 the defendant filed the VP of Advocate Shri Puranik. The Application at exh. 64 was also filed seeking permission to recall Mr.Musale for his cross-examination and as noted earlier this application has been rejected almost after 11 months by the impugned order. 6. The Learned Judge of the trial Court in the impugned order noted that when the application at exh.64 was rejected and the suit was posted for Judgement, it could not be reverted back to the stage of hearing. On this ground the trial Court held that the application was not maintainable and the only remedy available to 3 the defendant was under Order IX Rule 13 of CPC namely to move an application for setting aside the exparte order. 7. The Learned Counsel for the Petitioner has relied upon the Judgement of this Court in the case of Balkrishna Balkrishna Balkrishna Shivappa Shetty V/s. Mahesh Nenshi Bhakta I Shivappa Shetty V/s. Mahesh Nenshi Bhakta I Shivappa Shetty V/s. Mahesh Nenshi Bhakta I ors. ors. ors. (2003 (3) Mh.L.J.47). (2003 (3) Mh.L.J.47). (2003 (3) Mh.L.J.47). In the said case this Court held that " Since the provisions of law contained in Order XVIII, Rule 17 of the Code though nowhere empowers the Court to allow a party to cross-examine a witness by recallilng such witness, and the impugned order having been passed in exercise of the provisions contained in Order XVIII, Rule 17, the same is unsustainable and is liable to be set aside. The contention that such powers can be exercised under section 151 of the Code may be true in a given case provided the materials on record justify such order." 8. As noted earlier after the affidavit by way of examination in chief was filed on 26-6-2003, on the next two dates none remained present for both the parties before the trial Court and on the 3rd date i.e. on 4 16-4-2003 the final arguments were advanced by the Learned Advocate for the Plaintiff and at the sametime the application at exh.64 was moved. It appears that the earlier Advocate for the defendant was not appearing in suit on most of the dates. It would be in the interest of both the parties that PW-1 is recalled for his cross-examination by the defendant and his cross examination is completed by the defendant on the same day but by levying costs. The Plaintiff may suffer hardship if the defendant is left with the alternative remedy of filing an application under Order-IX Rule-13 of CPC. 9. Hence, the Petition is allowed partly and the impugned order dated 1-3-2004 is quashed and set aside. The application at exh.64 stands allowed. The parties shall appear before the trial Court in RCS No.112/1994 on 21-4-2008 and submit an application alongwith the authenticated copy of this order to fix the next date which should not be later than 30-4-2008 for the cross-examination of PW-1 Shri Musale and it shall be the responsibility of the plaintiff to ensure that the said witness is present before the trial Court on such fixed date for cross-examination. This order is subject to the Petitioner remitting an amount of Rs. 3000/- by 5 way of costs in the trial Court before 21-4-2008 and the plaintiff is at liberty to withdraw the same. 10. Rule is made absolute accordingly. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]