Bombay High Court
Bajirao Yemji Rathod vs Vanmala Sitaram Chavan And Others on 20 July, 2016
Bench: S.P. Deshmukh
1 WP-7247.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 7247 OF 2016
Bajirao s/o Yemji Rathod,
Age : 38 years, occup. Agriculture,
R/o Ghatangri, Taluka & District : ... Petitioner/orig.
Osmanabad Deft.no. 6
versus
01. Vanmala w/o Sitaram Chavan,
Age: 48 years, occup. Agriculture
and Household, R/o ghatangri,
Taluka & District Osmanabad
02. Devidas w/o Yemji Rathod,
Age: 68 years, occup. Agriculture,
R/o Ghatangri, Taluka and District
Osmanabad
03. Sunita w/o Revan Chavan,
Age: 45 years, occup. Agriculture
& Household, R/o Umbre Kotha,
Bombale Hanuman Chowk,
Osmanabad, Taluka and District
Osmanabad
04. Yamunabai W/o Manohar Rathod,
Age: 48 years, occup. Agriculture
& Household, R/o Ghatangri,
Taluka and District Osmanabad
05. Netaji s/o Yemji Rathod,
Age: 46 years, occup. Agriculture,
R/o as above
06. Sheshrao s/o Yemji Rathod,
Age: 41 years, occup. Agriculture,
R/o as above
07. Amol s/o Netaji Rathod,
Age : major, occup. Agriculture,
R/o as above
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08. Rohidas s/o Manohar Rathod,
Age: major, occup. Agriculture,
R/o as above
09. Gokul s/o Kehma Rathod,
Age: major, occup. Agriculture,
R/o as above
10. Anil s/o Mahadeo Yadav, .. Respondents/
Age: major, occup. Agriculture, Res. No. 1 ori
R/o as above Pltff., Resps.
No.2 to 10 orig.
Defts.No.1 to 5
and 7 to 10
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Mr. Mohit Deshmukh, Advocate h/f Mr. S. G. Chapalgaonkar,
Advocate for petitioner
Mr. P. S. Chavan, Advocate for respondent no. 1
CORAM : SUNIL P. DESHMUKH, J.
DATE : 20th July, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Hear learned
counsel for appearing parties finally by consent.
2. Petitioner-original defendant no. 6 in regular civil suit no.
372 of 2016 is before this court, aggrieved by order passed by
learned Civil Judge, Senior Division, Osmanabad, rejecting
defendants' application Exhibit-43 for setting aside no cross
examination order earlier passed against them.
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3. Respondent no. 1 has instituted the suit against present
petitioner and other respondents seeking partition and separate
possession of her 1/7th share in suit properties.
4. Issues came to be framed in the suit in due course and the
plaintiff proceeded with giving evidence. It appears that during
plaintiff's evidence, petitioner-original defendant no. 6 had not
attended to the matter and even after closure of evidence of
plaintiff in the beginning of February, 2016 and even thereafter
for quite a while, petitioner had failed to attend to the suit
proceedings. In the meanwhile, it appears, no evidence order
had been passed in the beginning of March, 2016. It was only
upon re-opening after summer vacation, an application Exhibit-
43 had been moved by petitioner for setting aside no cross
examination order, submitting that the matter could not be
attended to by defendants because settlement of the matter was
being explored and further that due to drought they had been
away from the place.
5. Application (Exhibit-43) had been resisted by the plaintiff,
denying that there was ever any exploration of possibility of
amicable settlement; no cross examination order had been
passed way back in mid January, 2016 and thereafter evidence
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of the plaintiff had been closed in the beginning of February,
2016. Around the first week of March, 2016, learned counsel for
plaintiff had argued the matter and it was fixed for judgment,
contending that once the matter had been fixed for judgment,
the court may not have power to go back entertaining the
application as has been filed by present petitioner.
6. The court, upon aforesaid submission, under impugned
order considered the matter appreciating that there has been
quite a long hiatus in attending the dates intervening the
passing of no cross examination order and application for setting
aside said order. The trial court appears to have considered that
the matter had been closed for judgment and having regard to
observation in an unreported judgment in the case of Dinkar
Pandharo Gole vs. Vitthal Namdeo Bobade [writ petition no.281 of 2009
decided by Nagpur Bench on 23-11-2009] went on to reject the
application under impugned order.
7. Learned counsel Mr. Mohit Deshmukh appearing on behalf
of the petitioner submits that looking at the short time span
after commencement of trial and non attendance of the matter
due to the constraints referred to above, the application should
have been considered and given a lenient treatment instead of
being dealt with a pedantic approach, which to a large extent,
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may not sub-serve the cause of justice. He submits that
although the court purportedly has considered the matter to
have been fixed for judgment, actually it may not be so, for,
dates as have been appearing which could be taken out from the
process sheet as has been displayed on internet, would indicate
that the matter had been coming up either for arguments or for
say on application that had been filed for setting aside no cross
examination order. He submits, the same may receive its due
and petitioner may be given benefit of the same.
8. Mr. Chavan, learned counsel appearing for respondent no.
1, however, purports to look at the matter from altogether
different angle. He submits, overall approach of the petitioner in
conduct of the suit had been pretty casual, callous and
disrespectful to the court proceedings. Apart from the
unsubstantiated plea about exploration of possibility of
settlement of the matter, even the plea of leaving native place
due to famine is not sustainable since it has not been supported
by any material. He submits that once the matter had been
fixed for judgment, the court has little power to revert to any
earlier stage, including the one as requested under Exhibit-43 by
petitioner. He, therefore, urges not to grant any indulgence and
if at all the court relents, heavy costs be imposed with direction
to the trial court to dispose of the suit expeditiously.
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9. Having heard learned counsel for the parties and on
perusal of copies of process sheets as taken out from internet in
respect of the suit which have been very fairly placed on record
by learned counsel Mr. Chavan, it appears that the matter is
being shown and has been appearing on board at various stages.
However, it does not appear that the matter had ever been fixed
for judgment, for, all the dates intervening 11-01-2016 to 16-
07-2016 show that those are either for hearing or defence
evidence or for that matter arguments and after 14-06-2016 for
filing say on Exhibit___ and ready.
10. Aforesaid apart, looking at that in stead of getting
digressed or obfuscated or rather obstructed by veracity or
otherwise of plea of petitioner and/or correctness of information
displayed on internet, it appears to be a case looking at the
proximity of the dates as had been appearing in 2016, the
situation can be salvaged by imposing costs on the petitioner
and directing the trial court to dispose of the suit expeditiously,
the alternative as is suggested.
11. In view of aforesaid, impugned order is set aside. Exhibit
- 43 stands allowed subject to payment of costs of ` 7500/-by
petitioner to respondent no. 1-plaintiff. Costs be deposited in the
trial court within a period of four weeks from the date of receipt
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of writ of this order for onwards disbursal to the plaintiff. The
suit to proceed expeditiously and be disposed of within a period
of six months from the date of receipt of writ of this order. If the
costs are not paid, impugned order shall stand revived and the
suit shall proceed from the stage as if impugned order has not
been set aside.
12. Rule made absolute in aforesaid terms. Writ petition
stands disposed of accordingly.
SUNIL P. DESHMUKH,
JUDGE
pnd
