-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 65/2009 ( Sk. Rahim Sk. Gulab -versus- Mohd. Kaseem ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : MARCH 2, 2009. Heard Advocate Shri M.A. Vaishnav, for appellant, Advocate Shri J.T. Gilda, for respondent no.4 and learned A.G.P. for respondent no.13. Advocate Shri Vaishnav contends that witness no.2 for present appellant namely Abdul Garraf Abdul Salam could not be cross-examined, because he was unwell for quite long time and he was dependent on his Advocate, as he is senior citizen. It is stated that Advocate was also not well, therefore, the next date fixed in the matter for cross examination could not be communicated to the said witness. It is contended that thus in the absence of cross examination the evidence of appellants important witness has been closed and serious prejudice has been caused to the appellant. It is also -2- pointed out that the reasons given by the appellant in this respect are not considered by any of the Authorities. It is also stated that as the order has been also held to be interlocutary, revision against it is declared to be not maintainable. Advocate Shri Gilda, for respondent states that 5 chances were given to the said witness to make himself available to cross examine and when the said witness did not turn up, the matter was proceeded further. He further states that thereafter, an application at Exh.36 was moved seeking permission to produce the said witness for cross examination and when the said application was taken up for hearing, again the counsel for present appellant or appellant did not remain present. He states that because of this negligence attitude the Assistant Charity Commissioner has rightly passed the impugned order on 22.10.2007. Advocate Shri Gilda, further points out that hearing in the matter has proceeded further and now the arguments of parties are also over and in any case, this Court should not interfere when the matter is already fixed for orders. Perusal of the judgment of learned Single Judge in the case of Mukesh Tirpude .vrs. Wamanrao Kmobade (2008 [4] Mh.L.J. 562), particularly -3- paragraph no.5 clearly shows that revision against the impugned order was tenable. However, then considering the subsequent developments it is clear that any interference by this court at this stage would result in sending the matter back at least 4 years. In the circumstances, I find it proper to permit the Assistant Charity Commissioner to decide the Change Report proceeding finally and liberty is given to the present appellant to challenge the impugned order dated 22.10.2007 along with the final order passed by the Assistant Charity Commissioner, if occasion therefor arises. In view of the liberty granted, the Second Appeal is disposed of as infructuous. No cost. JUDGE Rgd.