Bombay High Court
Narmadabai Baburao Harde vs Sau. Meera Pankaj Bhujadi on 21 November, 2011
Bench: S. S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2496 OF 2011
Narmadabai Baburao Harde,
Age: 67 years, Occ: Household,
R/o.Taharabad, Tq. Rahuri,
District Ahmednagar. ...PETITIONER
VERSUS
1. Sau. Meera Pankaj Bhujadi,
Age: 34 years, Occ: Agri.,& Business,
R/o. Rahuri (Bk), Tq. Rahuri,
2.
District Ahmednagar.
Bala Maruti Surse,
Age: 72 years, Occ: Agri.,
R/o. Taharabad (Gadakhwadi),
Tq. Rahuri, Dist. Ahmednagar.
3. Sau. Jayashree Subhash Tupe,
Age: 36 years, Occ: Agri.,& Business,
R/o. Sales Tax Colony, Pipeline Road,
Ahmednagar, Tq. Nagar,
District Ahmednagar. ...RESPONDENTS
WITH
WRIT PETITION NO. 2476 OF 2011
Narmadabai Baburao Harde,
Age: 67 years, Occ: Household,
R/o.Taharabad, Tq. Rahuri,
District Ahmednagar. ...PETITIONER
VERSUS
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1. Sau. Archana Shantanu Bhujadi,
Age: 26 years, Occ: Agri.,& Business,
R/o. Rahuri (Bk), Tq. Rahuri,
District Ahmednagar.
2. Bala Maruti Surse,
Age: 72 years, Occ: Agri.,
R/o. Taharabad (Gadakhwadi),
Tq. Rahuri, Dist. Ahmednagar.
3. Subhash Ramchandra Tupe,
Age: 44 years, Occ: Agri.,& Business,
R/o. Sales Tax Colony, Pipeline Road,
Ahmednagar, Tq. Nagar,
District Ahmednagar. ...RESPONDENTS
WITH
WRIT PETITION NO. 2493 OF 2011
Narmadabai Baburao Harde,
Age: 67 years, Occ: Household,
R/o.Taharabad, Tq. Rahuri,
District Ahmednagar. ...PETITIONER
VERSUS
1. Pushkar Pankaj Bhujadi,
Age: 7 years, Through Natural
Guardian : Pandharinath Shankarrao
Bhujadi, Age: 74 yrs, Occ: Agri.,
R/o. Rahuri (Bk), Tq. Rahuri,
District Ahmednagar.
2. Bala Maruti Surse,
Age: 72 years, Occ: Agri.,
R/o. Taharabad (Gadakhwadi),
Tq. Rahuri, Dist. Ahmednagar.
3. Rambhau Sakharam Deshmukh,
Age: 69 years, Occ: Agri.,
R/o. Taharabad, Tq. Rahuri,
District Ahmednagar. ...RESPONDENTS
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WITH
WRIT PETITION NO. 2497 OF 2011
Narmadabai Baburao Harde,
Age: 67 years, Occ: Household,
R/o.Taharabad, Tq. Rahuri,
District Ahmednagar. ...PETITIONER
VERSUS
1. Sau. Vaishali Vinay Bhujadi,
Age: 31 years, Occ: Agri.,& Business,
R/o. Rahuri (Bk), Tq. Rahuri,
District Ahmednagar.
2.
Bala Maruti Surse,
Age: 72 years, Occ: Agri.,
R/o. Taharabad (Gadakhwadi),
Tq. Rahuri, Dist. Ahmednagar.
3. Saurabh Subhash Tupe,
Age: 14 years, Occ: Education,
Minor Through Natural Guardian:
Sau. Jayashree Subhash Tupe,
Age: 38 years, Occ:Agri., & Business,
R/o. Sales Tax Colony, Pipeline Road,
Ahmednagar, Tq. Nagar,
District Ahmednagar. ...RESPONDENTS
...
Mr. V.D. Salunke, Advocate holding for
Mr. B.A. Shinde, Advocate for petitioners.
Mr. S.P. Brahme, Advocate for respondent No.2.
Mr. N.V. Gaware, Advocate for respondent No.3 in
Writ Petition No. 2493 of 2011.
...
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CORAM: S.S. SHINDE, J.
DATE : 21ST NOVEMBER, 2011
ORAL JUDGMENT :
. Rule. Rule made returnable forthwith.
Heard with the consent of learned Counsel for the
parties.
2. All writ petitions raise only point that,
whether in view of the loss of opportunity to file
written statement since the defendants in
respective matters were not present on the date
when the matter was fixed for filing written
statement can be deprived from cross examining the
plaintiff on the ground that, the matter proceeded
exparte against respective respondents.
3. Learned Counsel appearing for the
petitioners submits that, though the petitioners
did not file written statement and the matter
proceeded exparte against the petitioners,
however, they have right to cross examine the
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plaintiff restricted to the examination in chief.
Learned Counsel for the petitioners in support of
his contention has placed reliance upon the
judgment in the case of Suryabhan Ranuba Wagh vs.
Shobha Bhimrao Pawar reported in 2002 Mh.L.R-4-10
and submitted that, these writ petitions may be
allowed thereby setting aside the impugned orders
challenged in these writ petitions.
4.
On the other hand, learned Counsel for
the respondents would submit that, since the
matter proceeded exparte against the petitioners
herein i.e. original defendants, in respective
matters, there was no question of cross
examination of the plaintiff by the respective
defendants. Therefore, the Counsel for the
respondents submits that, these writ petitions may
be dismissed.
5. I have given due consideration to the
rival submissions. The point arise in these writ
petitions is no more res-integra in view of the
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authoritative pronouncement of this Court in the
case of Suryabhan Ranubawagh (supra). Para-9 of
the said judgment reads thus :
"9. HOWEVER, in the light of ratio laid
down by the Supreme Court in the matter
of modula India (supra), the omission on
the part of defendant to file written
statement of defence will not deprive the
defendant an opportunity to participate
in the proceedings from the adjourned
date of hearing. The learned high Court
held that trial court, in allowing
Advocate to cross examine the plaintiff,
therefore, appears to have committed no
illegality or material irregularity. The
scope of such cross examination would be
absolutely limited as indicated in the
case of Modula India."
6. Therefore, from reading para-9 of the
judgment cited supra, it is abundantly clear that
the omission on the part of defendants to file
written statement of defence will not deprive the
defendants an opportunity to participate in the
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proceedings from the adjourned date of hearing.
Therefore, the petitioners in the present case,
who are the defendants were entitled to cross
examine the plaintiff in respective suits.
However, it appears that, the learned trial Court
by impugned order declined such prayer of the
petitioners to cross examine the plaintiff on the
ground that, the suit proceeded exparte against
the defendants and the application of the
defendants for setting aside exparte order is
rejected and the said order has been confirmed by
this Court. That appears to be only ground on
which 3rd Joint Civil Judge, Senior Division,
Ahmednagar held that the defendants are not
entitled to cross examine the plaintiff or any
other witness of any party. Therefore, the orders
impugned in the respective petitions, are contrary
to the judgment of this Court and in particular-9
of the judgment cited supra. Therefore, the
impugned orders in respective petitions are
quashed and set aside. The petitioners herein,
who are the defendants, will be entitled to cross
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examine the plaintiff on the date fixed by the
trial Court and will not ask for unnecessary
adjournment unless there is an extraordinary
circumstance for asking the adjournment.
7. Writ Petitions stand allowed and disposed
of. Rule made absolute to the above extent.
sd/-
[S.S. SHINDE, J.]
sut/NOV11
