1 wp3155-11.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 3155 OF 2011 M/s Soham Builders Ltd. and another .. Petitioners Versus Business Space Designs ... Respondent Mr. Sandesh Deshpande for the petitioner Mr. Ashok Kumar Singh for the respondent 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 March, 2011 passed by the Joint Civil Judge, Senior Division, Kolhapur, by which order the application for setting aside the "No cross order" passed against the petitioners who are the defendants in Special Civil Suit no.58 of 1996 came to be rejected. 2 wp3155-11.sxw 3. The facts in the above petition disclose that the cross examination of the witness of the plaintiff was commenced on 18th January, 2011. Thereafter it was adjourned to 25th January, 2011, however, due to some difficulty, the advocate for the defendants could not remain present for conducting the cross examination. On the said day i.e. on 25th January, 2011, the plaintiff filed an application that "no further cross order" may be passed against the defendants. Accordingly, "no further cross order" came to be passed on 25th January, 2011. Since the defendants were not present, they were not aware of the said order being passed against them and therefore on 9th February, 2011, when they appeared before the Court, an application was filed seeking adjournment for the cross examination of the plaintiff however, the said application came to be rejected on the ground that the matter was not kept for cross examination of the plaintiff as already a "no cross order" has been passed against the defendants. Thereafter, the instant application Exh. 109 came to be filed for setting aside of the "no cross order" dated 25th January, 2011. The same has been rejected on the ground that since the earlier applications Exhs.90 104 and 106 for the same purpose have been rejected, the instant application could not be entertained. 3 wp3155-11.sxw 4. In my view, considering the well settled dictum that a party should be allowed to prosecute the proceedings on merits rather than being thrown out on technicalities, it would be just and proper to show a final indulgence to the defendants to cross examine the witness of the plaintiff. The plaintiff can be compensated for the inconvenience that is caused to him on account of the said delay in cross examination of the witness. In that view of the matter the impugned order dated 8th March, 2011 is required to be quashed and set aside and accordingly quashed and set aside. The parties to appear before the trial Court on 19th of December, 2011 on which date the trial court would fix a schedule for cross examination of the plaintiff. The learned counsel for the petitioners herein i.e. defendants states that the cross-examination would be completed on the same day. 5. In my view, the interest of justice would be served if the defendants are directed to pay cost of Rs.10,000/- to the plaintiff. Plaintiff, therefore, would be allowed to withdraw an amount of Rs. 10,000/- from the amount of Rs.25,000/- which is already deposited in the trial Court by the defendants. The defendants would be entitled to withdraw the balance amount. 4 wp3155-11.sxw 6. Considering the age of the plaintiff who is reported to be 82 years years old, hearing of the suit is expedited. 7. Rule is accordingly made absolute in the aforesaid terms. ( R. M. SAVANT, J. )