Bombay High Court
Namdeorao G. Khobragade Thr. ... vs Mrs. Kusumtai Prabhakarrao ... on 1 October, 2021
Bench: S. M. Modak
wp.6473.19.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6473 OF 2019
Petitioner : Namdeorao s/o Gajananrao Khobragade,
Original
Aged about 92 years, Occupation : Nil,
Defendant No.1 Resident of New Yashwant Nagar,
Near Hanuman Mandir, Hinganghat,
District Wardha.
Power of Attorney Holder
Mrs. Vijay s/o Namdeorao Khobragade.
-- Versus -
Respondents : 1] Mrs. Kusumtai Prabhakarrao Rahate,
Respondent Aged about 74 years, Occupation: Housewife,
Nos.1 to 5/ R/o Reshimoli, Itwari, Nagpur.
Original Plaintiff
Nos.1 to 5 2] Smt. Anjanabai Shriramji Shendre,
Aged about 84 years, Occupation: Housewife,
R/o Nimkheda, Tahsil Mouda, District Nagpur.
3] Mrs. Janabai w/o Radheshyam Bhandarkar,
Aged about 65 years, Occupation: Housewife,
R/o Plot No.15, Behind Sai Mandir,
Ayodhyanagar, Nagpur - 24.
4] Smt. Kantabai wd/o Vijayanand
Phulbandhe
Aged about 61 years, Occupation: Housewife,
R/o Quarter No.4, Z.P. Colony, Vidyanagar,
Bhandara, Tahsil & District Bhandara.
5] Smt. Sumanbai wd/o Vilasrao Shegaonkar,
Aged about 71 years, Occupation: Housewife,
R/o V-173, Vijayanand Society,
Narendra Nagar, Nagpur.
Respondent 6] Manohar s/o Gajanan Khobragade,
Nos.6 to 9/ Aged about 81 years, Occupation: Retired,
Original Defendant R/o Near Gajanan Mandir,
Nos.2 to 5 New Subhedar Layout, Nagpur - 24.
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7] Gulabrao s/o Gajanan Khobragade,
Aged about 80 years, Occupation: Retired,
R/o Kadambari Apartment,
Near Swamy Samarth Mandir, Besa Road,
Besa, Nagpur.
8] Motiram s/o Gajanan Khobragade,
Aged about 77 years, Occupation: Retired,
R/o Gajanan Mandir Road, Rukmini Road,
Nagpur -24.
9] Chhaganrao s/o Gajananrao Khobragade,
Aged about 68 years, Occupation: Retired,
R/o Pipe Factory, Rajiv Nagar, Bela,
Tahsil & District Bhandara.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri A.K. Choube, Advocate for the Petitioner.
Shri A.K. Neware, Advocate for Respondent No.4.
Shri N.R. Bhisikar, Advocate for Respondent No.6.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : S.M. MODAK, J.
DATE : 1st OCTOBER, 2021.
ORAL JUDGMENT :-
Rule. Rule made returnable forth. Heard learned
Advocate Shri A.K. Choube for the petitioner/defendant No.1, learned
Advocate Shri A.K. Neware for respondent No.4/plaintiff No.4 and
learned Advocate Shri N.R. Bhisikar for respondent No.6/defendant
No.2 finally by consent. Respondent Nos.1 to 3, 5 and 7 to 9 though
served of this writ petition, have not appeared.
02] As observed in the order dated 23/09/2021, learned
Advocate Shri Choube has produced typed copy of the order dated
03/02/2021. The trial Court was directed to proceed with the hearing
of the suit. It is true that the hearing of the suit was stayed as per
the order passed by this Court in the present petition on 25/09/2019.
It is true that the duration of the said order was not extended and the
trial Court on the basis of the observations made by the Hon'ble
Supreme Court in the case of Asian Resurfacing Road Agency vs.
Central Bureau of Investigation passed on 17/07/2020 in Criminal
Appeal Nos.1375 & 1376 of 2013, was pleased to resume hearing of
the suit. For that reason, urgent circulation is sought and the matter
was heard on the last date.
03] The trial Court was pleased to reject the application filed
by defendant No.1 as per the order dated 29/07/2019. It was passed
below Exh.46. By the said order, defendant No.1 has requested the
trial Court to set aside 'No Cross Order' passed on 05/02/2019.
04] If the impugned order dated 29/07/2019 is perused, we
may find that the trial Court has rejected the request mainly for two
reasons. Firstly, in spite of giving opportunities earlier to cross-
examine, defendant No.1 has not exhausted that remedy and that is
how the order of no cross was passed on 05/02/2019. There is no
dispute that earlier also, there was 'no cross order' passed on
16/01/2018. It was set aside as per the order passed below Exh.39.
The cross-examination could not be conducted and, hence, second
order of no cross was passed on 05/02/2019. Secondly, the trial
Court rejected the request made vide Exh.46 for the reason that the
plaintiff and defendant No.1 have settled the dispute and the trial
Court referred to rule of prudence that "the supporting defendants
are expected to cross-examine the plaintiff prior to the contesting
party i.e. defendant Nos.2 & 3". The trial Court observed, if
defendant No.1 is permitted to cross-examine, it will cause prejudice
to defendant Nos.2 & 3.
05] It is a matter of record that the defendants have earlier
filed a common written statement through one learned Advocate
representing all of them. Subsequently, there were talks of
compromise and all have decided to settle the dispute except
defendant No.2. It is referred by the trial Court in paragraph 3 of the
impugned order.
06] Today, it is submitted before me that defendant No.1 has
appointed new Advocate. So also, defendant Nos.2 & 3 have
appointed new Advocate. Today, it is also submitted before me that
defendant Nos.2 & 3 have even amended the written statement with
leave of the Court. By way of amendment, they have pleaded certain
new facts, which were not pleaded in the original written statement.
The learned Advocate for respondent No.1/plaintiff submitted that in
the original written statement filed by all the five defendants, the
claim of the plaintiff is almost admitted.
07] This Court feels that even though these defendants were
earlier granted an opportunity to cross-examine vide order passed
below Exh.39, the trial Court ought to have given an opportunity to
these defendants to cross-examine the plaintiff. When the reasons
quoted in the application below Exh.46 are perused, one can say that
there were convincing reasons for defendant No.1 for not conducting
the cross-examination, even though permitted as per the order
passed below Exh.39. An order refusing opportunity to cross-
examine has got drastic consequences. The trial Court could have
imposed costs and then permitted to cross-examine. The order
refusing cross-examination cannot be said to be passed by taking
judicious approach.
08] When defendant No.1 is supporting the plaintiff, as
observed in paragraph 4 of the impugned order, in fact the trial Court
ought to have permitted defendant No.1 to cross-examine the
plaintiff first. By doing that, the trial Court could have avoided to
cause prejudice to defendant Nos.2 & 3. Unfortunately, on one hand,
the trial Court observed that permitting defendant No.1 to cross-
examine the plaintiff will amount prejudice to defendant Nos.2 & 3
and on other hand, on factual aspect, defendant No.1 was refused
permission.
09] If the trial Court could have taken judicious approach
about the reasons quoted in the application, certainly, an opportunity
ought to have been given to defendant No.1 to cross-examine the
plaintiff. It seems that the trial Court was more influenced by not
exhausting an opportunity granted to defendant No.1 earlier. Even
though, opportunity was granted earlier, it may happen that due to
circumstances beyond control, the party may not conduct the cross-
examination. It does not mean that the right to cross-examine can be
denied totally.
10] Hence, this Court feels that the order passed on
29/07/2019 cannot be sustained in the eyes of law. In fact, when the
written statement was amended by defendant Nos.2 & 3, the trial
Court ought to have considered the request of defendant No.1 to
conduct cross-examination independently. The trial Court was very
much aware about the leave granted to defendant Nos.2 & 3 to
amend the written statement. This fact does not find place anywhere
in the impugned order. For that reason also, the order cannot be
sustained. It needs to be set aside.
11] Respondent No.1/plaintiff through her Advocate has
consented for allowing the writ petition. Prior to disposing of the writ
petition, this Court wants to observe that in view of the changed
circumstances, if defendant No.1 wants to carryout the amendment
of the written statement, he is at liberty to seek leave of the Court
and the Court may decide it on merits. These observations are made,
because defendant Nos.2 & 3 have amended the written statement.
It is, therefore, necessary to fix certain time limit for conducting of
the matter. In view of that, the following order is passed :
ORDER
[I] The writ petition is allowed
[II] The impugned order dated 29/07/2019 passed by the
learned 10th Joint Civil Judge Senior Division, Nagpur below
Exh.46 in S.C.S. No.689/2014 is set aside.
[III] Defendant No.1 is permitted to cross-examine the plaintiff.
[IV] It is made clear that if defendant No.1 wants to amend the
written statement, he is at liberty to file an application within
10 days from the date of appearance before the trial Court
and the trial Court is directed to decide that application
within two months after securing replies of the concerned
parties. If such amendment application is moved, defendant
Nos.2 & 3 are at liberty to opposed that application.
[V] If defendant No.1 does not want to carryout amendment in
the written statement, he is directed to complete the cross-
examination within a period of 15 days.
[VI] All the parties are directed to appear before the trial Court
before 8th of October, 2021, when the matter is already fixed
by the trial Court.
[VII] The trial Court is directed to disposed of the suit as early as
possible.
[VIII] With these observations, the rule is made absolute with no
order as to costs.
(S.M. MODAK, J.)
*sandesh
