1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2115 OF 2009 Balappa Ninjappa Aladale (deceased) through his Legal heirs Shri Maruti B Aladale .. petitioner -versus Shri. Lagma Ninjappa Aladale .. respondent Mr. Prashant Bhavke i/b N. V. Bandiwadekar, for the petitioner. Mr G.N. Salunke, for the respondents. CORAM: A.S. OKA, J. DATED:25 th September, 2009. P.C. 1. Submissions of the learned counsel for the parties were heard on the earlier date. Today the petition is kept for passing order. 2. The petitioner is the original defendant No.3(a) and respondent is the original plaintiff. The challenge in this petition under Article 227 of the Constitution of India, is to an order dated 9th January, 2009 passed by the Trial Court below application at Exh.111. The Application at Exh. 111 was made for setting aside the order of “no cross” 2 passed by the Trial Court by which the petitioner was prevented from cross examining the PW-1. 3. The learned counsel appearing for the petitioner invited my attention to the extract of Roznama and pointed out that the learned Trial Judge has taken a very harsh view of the matter by not setting aside the order of “no cross”. The learned counsel for the respondent submitted that the learned Trial Judge was justified in passing the impugned order as sufficient opportunity was given to the petitioner by the learned Trial Judge to cross examine the witness. He submitted that even in the application at Exh.111, there was no explanation warranting interference with the impugned order. 4. I have given due consideration to the submissions. It appears that the affidavit in lieu of examination in chief of the said witness was filed on 6th August, 2008 and the suit was adjourned to 28th August, 2008. As the court was busy, the said suit could not be taken up on that day. For the same reason the suit was adjourned on 5th September, 2008, 15th September, 2008, 25th September, 2008 and 4th October, 2008. 5. On 13th November, 2008, though the advocate for the respondent and the witness were present, none 3 appeared for the petitioner and therefore, order of “no cross” was passed. On 6th December, 2008, application was made by the petitioner on which impugned order has been passed. Thus, the roznama of the proceeding of the suit shows that after the affidavit in lieu of examination in chief of the witness was filed, on at least five dates, the suit was adjourned on account of no fault of either parties. On 13th November, 2008, when the petitioner and his advocate remained absent, cross examination of the witness was closed. Considering these aspects, the Trial Court ought to have taken a lenient view of the matter and permitted the petitioner to cross examine the witness. The learned Trial Court has merely stated that though affidavit was filed on 6th August 2008, on 13th November, 2008 advocate for the petitioner failed to cross examine the witness. 6. The Trial Court ought to have allowed the application. The petition must succeed. However, respondent will have to be compensated by ordering payment of costs. The amount of costs is quantified as Rs. 5,000/-. Learned counsel for the petitioner states that the petitioner has already taken a demand draft in the name of respondent in the sum of Rs.5,000/-, but he has not received the same. Hence I pass the following order. 4 ORDER I) The impugned order dated 9th January,2009, passed below application at exh.111 is quashed and set aside and the application at exh.111 is allowed. II) The petitioner shall proceed to cross examine the witness on the date which may be fixed by the Trial Court and the petitioner will not be entitled to seek adjournment on unreasonable ground. III)The petitioner shall pay costs of Rs.5,000/- to the respondent within a period of six weeks from today. IV) The payment of costs will be the condition precedent. V) The Petition is allowed on above terms. (A.S. OKA, J)