Bombay High Court
Avinash S/O Shrikrishna Kamble vs Shriram M. Thorat (Dead) Thr. Lrs. ... on 3 August, 2024
24:BHC-NAG:5
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
CIVIL APPLICATION NO.1917 OF 2024
IN
WRIT PETITION NO. 8405 OF 2019 (D)
( Avinash s/o Shrikrishna Kamble ..vs.. Shriram Mohan Thorat (dead) through L.Rs. Chandrashekhar
and others )
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Smt. S.W. Deshpande, Advocate for the petitioner,
Shri R.D. Wakode, Advocate for the respondents.
CORAM : ABHAY J. MANTRI, J.
DATED : 03-08-2024
The petitioner-original defendant has moved this
application to seek an extension of time to deposit the
costs in the trial Court.
2. Heard Smt. S.W. Deshpande learned Advocate for
the petitioner and Shri. R.D. Wakode, learned Advocate
for the respondents. Perused the record.
3. The petitioner, by filing Writ Petition
No.8045/2019, challenged the order passed by the Civil
Judge Senior Division, Amravati, below Exhibit 76 in
Regular Civil Suit No.943/2012, in which his application
to set aside the order of striking of defence was rejected.
4. This Court vide detailed conditional order dated
05-04-2024 permitted the petitioner to conduct the
cross-examination of the witness/s, subject to deposit of
costs of Rs.20,000/- in the trial Court on or before
04-05-2024. In the said order, the conduct of the
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petitioner was discussed in detail in paragraphs 5 to 7;
however, with a view to meet the ends of justice only, the
petitioner was permitted to cross-examine the witness
subject to payment of costs. Despite the said fact, neither
the petitioner deposited the costs in the prescribed time
in the trial Court nor conducted a cross-examination of the
witness since 15/04/2017, i.e. more than " Five years" in more
than "Ten-years-old matter". It is to be noted that thrice,
the Trial Court granted permission to conduct the cross-
examination of the witness by setting aside a " No Cross"
order, but in vain. After that, this court also gave the
petitioner an opportunity, but there seemed to be no
consequence. I would like to reproduce relevant
paragraphs 5 to 7 of the order dated 05/04/2024 as
under,
"5. Perusal of the record reveals that since 2012,
the civil suit filed by the plaintiffs-respondents for
recovery of arrears of rent has been pending. Issues
were framed on 04.04.2013, and an affidavit of
examination in chief was filed by the plaintiff on
13.07.2016. Thereafter, on 26.08.2016, 21.09.2016,
18.01.2017, and 10.02.2017, the petitioner has filed
applications for adjournment. Despite granting
several opportunities, the defendant failed to conduct
a cross-examination; therefore, on 15.04.2017, a no-
cross order was passed. On 22.06.2017, the plaintiff
filed evidence close pursis.
6. It further appears that on 20.07.2017, the
defendant had moved an application for setting aside
a no-cross order, which came to be allowed subject to
payment of cost of Rs. 1500/-. On 02.10.2017,
plaintiff No.1 died; therefore, plaintiff No. 3 filed an
affidavit of evidence on 12.09.2018, and the matter
was fixed for a cross-examination of plaintiff No. 3.
Since the defendant failed to cross-examine plaintiff
No. 3 a second time no cross-order was passed on
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16.10.2018. On 31.10.2018, the defendant filed an
application for setting aside no cross order, which
came to be allowed on 14.03.2019, subject to
payment of a cost of Rs. 2000/-. The defendant did
not deposit the cost but filed an application dated
25.04.2019 for a grant of time to deposit the cost,
which was rejected. On 28.08.2019, for the third time,
no cross-order was passed below Exh. 63. So again, an
application for setting aside the no-cross order dated
28.08.2019 was filed on 20.09.2019, which came to
be allowed subject to a cost of Rs. 2500/- with a
specific direction that if cost is not paid and cross-
examination is not conducted, then defence shall
stand struck off, automatically. Despite specific
directions and noted down the order, the order did
not comply, therefore, the defence was struck off vide
order dated 01.10.2019. Once again, an application
for permitting to deposit of the cost of Rs. 2500/- and
setting aside the order dated 01.10.2019 was filed,
which came to be allowed partly permitting him to
deposit of cost but the prayer for setting aside the
order of striking of the defence came to be rejected.
7. Perused the impugned order. The learned
judge has passed the detailed reasoned order and also
noted the conduct of the defendant. No fault is found
in the order. Moreover, from the record, the conduct
of the defendant can be inferred, which shows that
the defendant is trying to prolong the matter by
moving one application after another for one reason
or the other. It can be further noticed that the
defendant has deliberately avoiding to proceed with
the matter, which is more than 'five years old' and
tried to protract the same. It is also evident that the
learned trial judge has granted ample opportunities to
the defendant to proceed with the matter on that
ground alone, but the defendant is not entitled to the
relief as claimed.
However, considering the submissions of learned
counsel for the petitioner and with a view to meet the ends of
justice, in my opinion, though, the defendant is not entitled to
claim the relief; however, showing leniency by way of last
chance, it would be appropriate to grant one more final
opportunity to the petitioner/defendant to contest the matter
on merit by imposing heavy costs."
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5. The petitioner, by this application, is seeking an
extension of time to deposit the said cost on the ground
that the matter was posted before the trial Court on
29-06-2024, and therefore, the petitioner could not
deposit the amount in the Court in the prescribed time.
However, I do not find substance in the said
contention/reason, as the order dated 05/04/2024 was
passed in the open court in the presence of the learned
Advocate for the petitioner/original defendant. That
being so, the learned Advocate was aware of the said
conditional order to comply in time. Moreover, the said
order was communicated to the petitioner by his
Advocate in the High Court in the second week of April
2024. Besides, the order was uploaded to the High Court
Website on 12-04-2024. In addition, the writ was also
sent to the trial Court on 26-04-2024. Therefore, it
cannot be said that the petitioner was not aware of the
conditional order. Per contra, it seems that the petitioner
is playing tactics with the Court by adopting dilatory
tactics to protract the litigation, which is more than "Ten
years old". The reasons stated in the application are
neither bona fide nor convincing enough to grant
leverage to the petitioner further. But the same is
unpalatable and unsatisfactory.
6. Having considered the discussion above, I do not
find substance in the application to recall the judgment
dated 05-04-2024 to the extent of granting an extension
of time to deposit the amount.
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7. The application, being bereft of any merit, hence
stands rejected.
8. Needless to clarify, the matter is more than ' Ten
years old'. As such, the Trial Court is directed to decide
the matter expeditiously as per the litigation policy.
9. Writ be issued to the trial Court immediately.
(ABHAY J. MANTRI, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 05/08/2024 19:06:09
