Prakash Baliram Khandare And ... vs Rahul Bhaskarrao Rankhamb Thr Its ...
2021 Latest Caselaw 12347 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 9042 OF 2021

1.     Prakash s/o Baliram Khandare,
       Age : 60 years, Occu. Agri. & Business,
       R/o M.I.D.C., Osmanabad, Taluka
       and District Osmanabad

2.     Deelip s/o Baliram Khandare,
       Age : 55 years, Occu. Agri. & Business,
       R/o M.I.D.C., Osmanabad, Taluka                        PETITIONERS
       and District Osmanabad                               (Orig. Defendants)

       VERSUS

Rahul s/o Bhaskarrao Rankhamb,
Age : 40 years, Occu. Service & Agri.,
R/o Bank Colony, Osmanabad,
through his Gen. Power of Attorney
Suresh s/o Nivrutti Rankhamb,
Age : 55 years, Occu. Agri.,
R/o Village Kumalwadi, Taluka                                  RESPONDENT
and District Osmanabad                                        (Orig. Plaintiff)

                                   ----
Mr. Babasaheb A. Dhengle, Advocate for the petitioners
Mr. Prasanna S. Chavan, Advocate for the respondent
                                   ----

                                    CORAM :    MANGESH S. PATIL, J.

DATE : 01.09.2021

ORAL JUDGMENT :

Heard.

2. Rule. The Rule is made returnable forthwith. With the consent

2 WP9042-2021

of learned Advocates for the parties, the matter is heard finally at the stage of

admission.

3. The respondent, who is the original plaintiff, has filed a suit for

possession by removing encroachment allegedly made by the petitioners. It

appears that during the course of the trial, the petitioners failed to cross-

examine the respondent's witnesses. An order was passed to the effect that

there would be no cross-examination of the witnesses on behalf of the

petitioners. Subsequently, by the order dated 26.09.2019, the petitioners

were allowed to cross-examine the respondent's witnesses subject to payment

of costs of Rs.1500/-. However, the costs were not paid and again the

learned Judge had to record that there would be no cross-examination on

behalf of the petitioners. That order was sought to be set aside by moving an

application (Exh-41), but that has been rejected by the impugned order.

4. The learned Advocate for the petitioners submits that no

adjournment would be sought for cross-examination of the respondent's

witnesses if a specific date is fixed and even the petitioners are ready to pay

the costs imposed earlier as well as ready to bear the additional costs.

5. Considering the nature of the dispute coupled with the fact that

inspite of availing one opportunity at an earlier point of time, the petitioners

had failed to avail it by paying necessary costs and this is a second round

wherein the Court has been called upon to again permit them to cross-

3 WP9042-2021

examine the respondent's witnesses, the Writ Petition is allowed. The

impugned order is quashed and set aside; however subject to payment of

costs of Rs.10,000/- (Rupees Ten Thousand) in addition to the earlier costs of

Rs.1500/-, to be deposited in the Trial Court within two weeks from today.

The respondent shall be entitled to withdraw the costs.

6. The parties shall appear before the Trial Court on 16.09.2021.

The respondent shall keep all his witnesses present before the Trial Court on

that day and the petitioners shall cross-examine those witnesses on the very

day and the Trial Court shall not grant any adjournment.

7. The Rule is made absolute accordingly.

[MANGESH S. PATIL] JUDGE

npj/WP9042-2021