Gangadhar Keshavrao Ghuge vs Narayan Pandurang Jagdale And ...
2016 Latest Caselaw 2890 Bom

                                          {1}                           wp5112-15

     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                         
                         WRIT PETITION NO.5112 OF 2015




                                                 
     Major Gangadhar Keshavrao Ghuge                               PETITIONER
     Age - 70 years, Occ - Agriculture
     R/o Mahesh Nagar,
     Maharashtra Public School,




                                                
     Aurangabad

              VERSUS




                                        
     1.       Narayan Pandurang Jagdale                 RESPONDENTS
              Age - 40 years, Occ - Agriculture


     2.
                             
              R/o Sawangi, Taluka and District-Aurangabad

              Dnyandeo @ Dnyaneshwar Pandurang Jagdale
              Age - 40 years, Occ - Agriculture
                            
              R/o Sawangi, Taluka and District-Aurangabad

     3.     Sukhdeo Mansaram Jagdale,
            Age - 55 years, Occ - Agriculture
      

            R/o Sawangi, Taluka and District-Aurangabad
                                     .......

Mr. S. V. Adwant, Advocate for the petitioner Mr. P. F. Patni, Advocate for respondents No.1 to 3 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 16th JUNE, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. The petitioner - defendant aggrieved by "no cross" order

dated 18th January, 2014 on Exhibit-65 and refusal of his request

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to set aside the same under orders dated 19 th March, 2014

Exhibit-67 and 19th January, 2015 on Exhibit-69, is before this

court.

3. Learned advocate Mr. Adwant for the petitioner refers to

that while order had been passed on Exhibit-67, an elaborate

application had been made referring to the difficulties, which

were genuine and further to that the advocate had been

indisposed and was required to see a physician. Learned

advocate further submits that the order on Exhibit-67 rejecting

the request to recall no cross order dated 18 th January, 2014 as

such, is deficient of consideration of the other reason and the

court appears to be in oblivion of the same. Under the

circumstances, the petitioner was required to move application

Exhibit-69, to recall orders passed on 18 th January, 2014 and the

one on Exhibit-67 dated 19th January, 2014. However, the

impugned orders have been refused to be set aside. Learned

advocate submits that the impugned orders appear to have been

overwhelmed by the events which had lost significance. What

ought to have been considered is that on 18 th January, 2014,

there had been genuine difficulty. He submits that reasons which

have went into making impugned orders on Exhibits-67 and 69

are not germane for consideration of the applications. Even for

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earlier events the petitioner would not be liable to bear the

entire blame.

4. Learned advocate for the petitioner submits that there

were various intervening circumstances and difficulties, which

had been posed and on account of which cross of plaintiffs'

witnesses could not be taken. He under the circumstances,

requests the court that in order to let the defendant an

opportunity to cross-examine plaintiffs' witnesses to take a

lenient view in the matter.

5. Mr. Patni, learned advocate for the respondents - plaintiffs

however, vehemently submits that the request on behalf of the

petitioner does not deserve any consideration, having regard to

the antecedents, since this is third order of "no cross" and earlier

on two occasions, orders have been set aside and costs were

awarded, that too had not been deposited by the petitioner. The

matter has been prolonged at the instance of the defendant-

petitioner unreasonably. He submits that the approach of the

defendant is casual, negligent and without deference to court

and the proceedings. Mr. Patni further submits that the very

reason given for setting aside the "no cross" order is not a

reason which has been taken in contemplation under the

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procedural requirements. He, therefore, submits that no

indulgence at all be given to the petitioner.

6. The record, to some extent may reflect that the petitioner

- defendant has been listlessly prosecuting proceedings and

earlier on, no cross orders had been passed.

7. It may have to be taken into account that the no cross

orders had been set aside and the suit was being proceeded with

accordingly. On 18th January, 2014, when the matter was posted,

an application for adjournment had been moved, which came to

be rejected and no cross order was passed. Thereafter,

application Exhibit-67 had been moved for recalling order dated

18th January, 2014 giving quite in some detail the circumstances

under which the adjournment had been sought on 18 th January,

2014 including that the advocate of the defendant had to see a

physician on account of his health being unwell. While rejecting

application Exhibit-67, it appears, the court had considered that

earlier on no cross orders were passed and the petitioner was

allowed to cross examine. It surfaces that while passing the

orders, the court appears to be in oblivion of that the advocate

appearing for the petitioner had not been keeping well and had

to see physician. Said reason does not appear to have caught

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attention and the court got swayed by the intervening dates.

8. Perusal of the impugned orders indicates that those are

overwhelmed by antecedent circumstances which were

considered while setting aside earlier order of "no cross"

presumably giving the circumstances their due. The

circumstances narrated in the applications Exhibits-67 and 69 do

not appear to have received due attention which had got diffused

since being swayed ig by the past, and not by objective

appreciation of the circumstances in the applications, especially

the one that the advocate had been indisposed and had to see a

physician leaving not only the matter concerned but also quite a

few other professional commitments. As such, it appears to be a

case where an opportunity to defendant-petitioner may salvage

the situation.

9. In the circumstances, it would be expedient that the

application to set aside "no cross" order as and by way of last

chance, be given consideration and indulgence in order to have

completion of evidence, so that it may avoid further

procrastination of the litigation at some later stage and also by

giving direction to dispose of the suit at an early date putting

conditions to the petitioner which may be beneficial at the end to

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the plaintiffs themselves.

10. The inconvenience caused in the process, would be made

good by imposing costs and further that the petitioner-defendant

would be put to certain conditions by giving direction for further

expeditious conduct of the suit. As such, petitioner - defendant

to pay costs of Rs.25,000/-. Petitioner - defendant shall

complete cross examination of witnesses of plaintiffs examined

hitherto as expeditiously as possible, preferably within a period

of two weeks from the date of receipt of writ of this order and

plaintiffs' other witnesses, if any, be cross examined promptly. In

case of failure to comply with above, the trial court would pass

appropriate orders. The costs be deposited within a period of

four weeks from today. The suit be proceeded accordingly and

disposed of preferably within a period of six months from the

date of receipt of writ of this order.

11. Having observed aforesaid, the writ petition stands allowed

in terms of prayer clause "B", subject to payment of costs of

Rs.25,000/-. Rule is made absolute in aforesaid terms.

12. At this stage, Mr. Patni, learned advocate for the

respondents - plaintiffs states that the costs be enhanced to

Rs.50,000/- While urging this, learned advocate requests to take

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into account some judgments viz., in the case of "Noor Mohammed

Vs. Jethanand and Another" reported in AIR 2013 SC 1217, which is in

respect of adjournments stating that it should not be allowed to

paralyze virtues of adjudication. He refers to the rationale as

appearing in paragraph No.11 of the judgment. Mr. Patni also

refers to paragraph No.12 of the judgment in the case of "M/s

Bagai Construction Vs. M/s Gupta Building Material Store" reported in AIR

2013 SC 1849. He further refers to a judgment in the case of

"Dhanraj Lilaram Motwani and Another Vs. Rajendra Kumar Dayachand Jain

and Others" reported in 1995 (4) Bom. C. R. 659.

13. Although learned advocate for the respondents purports to

rely on aforesaid judgments, to change the order for costs being

less than expected, it would not be appropriate, that the order

should be altered. Also considering, as has been observed herein

above, that at the end of the litigation, in order to prevent

further procrastination on this ground of evidence being not

complete in the suits in order to avoid that possibility. It is

already referred to that the defendant is being put to some costs

and also there are directions for further expeditious prosecution

of the suit. The approach on either side is not commendable.

15. Learned advocate for the respondents - plaintiffs has

shown his reluctance to accept amount of costs as have been

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awarded. In the circumstances, the petitioner defendant to

deposit the costs of Rs.25,000/- with the High Court Legal

Service Sub Committee, Aurangabad within a period of four

weeks from today.

[SUNIL P. DESHMUKH, J.]

drp/wp5112-15