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2011 DIGILAW 968 (BOM)

Subham Manohar Pande v. Shashyank Pandurang Pande

2011-08-05

R.M.SAVANT

body2011
JUDGMENT :- Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the orders dated 28/3/2011 passed by the learned Civil Judge (Sr.Dn.), Nagpur, by which order the application for review of the order of "no cross" passed by thc Trial Court came to be rejected. 3. A "Nocross" order qme to be passed against the petitioner herein on 3/2/2010. An application was moved by the petitioner on 4/3/2010 for setting aside the said 'nocross' order. The said application came to be allowed by the Trial Court by its ordcr dated 10/8/2010 and the said "nocross order" was set aside by imposing costs of Rs.1000/- on the petitioner. Since the said amount of Rs.1000/- was not dcposited by the petitioner, the Trial Court passed an order on 23/9/2010 to proceed with the suit by maintaining the "nocross order". The petitioner thereafter filed an application dated 2/11/2010 for review of the said order dated 23/9/2010 along with an application for condonation of delay being Exhs. 118 and 119 respectively. The said applications came to be rejected by the order datcd 28/3/2011. 4. In the above petition, an order came to be passed on 28th of April, 2011 directing the petitioner to deposit an amount of Rs.2000/- in this court which the petitioner has accordingly deposited. 5. The learned counsel Shri Ambilwadi appearing for the contesting respondent no. 1 though opposes the petition but does not do it with any deal of conviction. He ultimately left it to this court, as to whether the petitioner should be shown any indulgence. In my view, since the petitioner has already deposited an amount of Rs.3000/-, the impugned order dated 28/3/2011 passed on the application Exhs.118 and 119 for condonation of delay and for review of the order dated 23/9/2010 are required to be quashed and set aside and resultantly the application Exh.118 and 119 are required to be allowed, the consequence of which would be that 'no crossorder' dated 3/2/2010 would stand set aside. The petitioner would resultantly be entitled to crossexamine the witness of the plaintiff. The crossexamination would be on the date that would be fixed by the Trial Court. The interest of justice would be served if the respondent no. The petitioner would resultantly be entitled to crossexamine the witness of the plaintiff. The crossexamination would be on the date that would be fixed by the Trial Court. The interest of justice would be served if the respondent no. 1 herein is allowed to withdraw the said amount of Rs.3000/- and the petitioner is directed to further pay an amount of Rs.2000/ - as costs to the respondent no. 1 for the prejudice and inconvenience that is caused to him. The amount of Rs.2000/- to be paid over to the respondent no. 1 within a period of four weeks from date. The parties to appear before the Trial Court on 2nd September, 2011. The Trial Court thereafter to fix the schedule for crossexamination of the witness. Rule is accordingly made absolute in the above terms with parties to bear their respective costs. Ordered accordingly.