Bombay High Court
Shri Ashish Mahadeorao Bhongade vs Smt. Arunabai Krushnarao Charjen ... on 15 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6465 OF 2015
Petitioner : Shri Ashish Mahadeorao Bhongade,
Aged about 34 years,
Occupation : Agriculturist/Service,
R/o Ghamoliya Plot, Paratwada,
ig Tah. Achalpur, District Amravati.
-- Versus --
Respondents : 1] Smt. Arunabai Krushnarao Charjen,
Aged about 57 years, Occupation : Agriculturist.
2] Shri Krushnarao Tukaram Charjen,
Aged about 62 years, Occupation : Agriculturist.
Both r/o Thtarkheda, Tah. Achalpur,
Distt. Amravati.
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Shri R.J. Kankale, Advocate for the petitioner.
Shri Abhay Sambre, Advocate for the respondents.
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C ORAM : A.S. CHANDURKAR, J.
DATE : 15
JUNE, 2016.
th
ORAL JUDGMENT :-
01] Heard finally with consent of the learned Counsel for the
parties.
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02] The petitioner is aggrieved by the order dated 23/10/2015
passed below Exhibit-48 by which the application moved by the petitioner
for setting aside the order dated 27/08/2015 by which his evidence came
to be closed has been rejected. The petitioner is the original plaintiff, who
had filed a suit for possession along with prayer for mesne profits. The
plaintiff was cross-examined on 10/08/2015 and on the subsequent dates,
when the suit was kept for recording further evidence of the plaintiff, he
and his counsel remained absent. On 27/08/2015, the trial Court closed
his side of evidence. The application filed by the petitioner on 06/10/2015
for setting aside the said order has been rejected.
03] Shri R.J. Kankale, the learned Counsel for the petitioner
submitted that due to illness of the petitioner's counsel, there was no
appearance before the trial Court. He submitted that the petitioner intends
to examine only one witness and thereafter close his case. According to
him, the suit is for removal of encroachment and, therefore, the evidence in
that regard is necessary.
04] Shri Abhay Sambre, the learned Counsel for the respondents
supported the impugned order. According to him, no justifiable reason was
given by the petitioner for setting aside the order dated 27/08/2015 and
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therefore, the trial Court rightly rejected the application moved by the
petitioner. He submits that the plaintiff himself was not interested in
prosecuting the suit.
05] Having heard the respective Counsel for the parties and
having perused the documents on record, it can be seen that the plaintiff
and his Counsel remained absent from 14/08/2015. In the application
dated 06/10/2015, it has been stated that the plaintiff's counsel was
unwell. Considering the fact that the suit is for removal of encroachment
and the plaintiff intends to examine one more witness, one opportunity
deserves to be granted to the petitioner subject to imposition of costs.
06] In view of aforesaid, the following order is passed:
i. The order dated 23/10/2015 is set aside.
ii. The application below Exhibit-48 is allowed and the petitioner
is permitted to lead further evidence. This is, however, subject
to costs of Rs.7,500/- to be paid by the petitioner to the
respondents in the trial Court within a period of six weeks
from today. On such costs being so paid, the trial Court shall
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permit the plaintiff to lead further evidence. The plaintiff
shall not be permitted to seek unnecessary adjournments in
the matter.
iii. Rule is made absolute in aforesaid terms. No costs.
ig JUDGE
*sdw
