High Court

Legal Reasoning

1 924-WP-14131-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 14131 OF 2023SHAIKH ABDUL MOBIN SHAIKH RAHIMVERSUSRADHAKISAN NAMDEO YEOLE AND OTHERS...Advocate for Petitioner : Mr. Rahul P. DhaseAdvocate for Respondents : Mr. Omkar M. Joshi h/f. Mr. Sharad V. Natu... CORAM : MANJUSHA DESHPANDE, J. DATE : 25-04-2025PER COURT:-1.Heard learned Advocates for the parties.2.Petitioner is original defendant No.2 in Regular Civil SuitNo.332 of 2010 filed by the original plaintiff/present respondentNo.1 in this writ petition.3.The petitioner has challenged the order dated 02.01.2023wherein application at Exhibit-100 filed by the General Power ofAttorney on behalf of defendants No.1 to 3 to set aside “no cross-order” passed below Exhibit-64, has been rejected.4.It is contention of the petitioner that the suit has been filedin the Court of Civil Judge Junior Division, Georai, District Beed fordeclaration of ownership and perpetual injunction in respect of the 2 924-WP-14131-23.odtsuit property land Block No.71 admeasuring 9H 19R, situated atvillage Takarwal, Taluka Gevrai, District Beed. Defendants No.1 to3 filed their written statement on 22.11.2010. On 19.08.2014, theplaintiff has filed his affidavit of examination-in-chief. Since thedefendants failed to cross-examine the plaintiff/witness, order of“no-cross” was passed by the trial Court on 08.11.2016.5.It is further observed in the order that though respondents’Advocate was called upon for cross-examination of the plaintiff,nobody caused appearance. Therefore, “no-cross” order waspassed by the learned Civil Judge Junior Division, Georai, on08.11.2016.6.It is further contention of the petitioner that due to illness ofdefendant No.1, defendants have executed power of attorney. ThePower of attorney holder was looking after proceedings in the suiton behalf of the defendants. On 08.11.2016, “No cross” order waspassed by the Court. The defendant filed application to set asideno cross order, which was allowed on 16.06.2016 on the conditionof depositing cost of Rs.400/- and, therefore, the plaintiff was to becross-examined subject to deposit the said amount.7.Being aggrieved by the order which was passed on08.11.2016, an application was moved by power of attorney ofdefendants No.1 to 3 on 13.11.2021. In the application, it is statedby the General Power of Attorney (for short, “G.P.A.”) on behalf of 3 924-WP-14131-23.odtdefendants No.1 to 3, that though the order was passed by theCourt setting aside “no-cross order” subject to depositing the costof Rs.400/-, he could not deposit the cost of Rs.400/- in the Courtas directed below Exhibit-64. It is further stated that sincedefendant No.1 is an aged person, he could not cause appearancebefore the Court. Defendants were aged persons, they hadvisibility and hearing issues. Defendant No.1 suffers fromhypertension, therefore, defendant No.1 to 3 have executedgeneral power of attorney on 10.01.2017 in favour of one NazibMunir Ahmed. After executing of G.P.A. defendant No.1 expired. Itis further stated that the G.P.A. failed to remain present before theCourt, and even the Advocate for the defendants suffered anaccident, eventually both of them did not remain present beforethe Court due to Pandemic lock-down. As a result, he could not filethe application for setting aside the order at Exhibit-62.8.It is contended by the petitioner that the substantial rights ofthe petitioner are at stake, the order Exhibit-62 needs to bequashed and set aside by granting opportunity to cross-examinethe witness. The delay caused in filing application has not beenintentional. Upon filing application at Exhibit-100/B, order waspassed by the learned Civil Judge Junior Division on 02.01.2023.In the impugned order, it is observed that though the order of “nocross” was set aside on 08.16.2016 at Exhibit-62, the defendantshad not deposited the cost, which was directed to be deposited. 4 924-WP-14131-23.odtOn 10.01.2017, copy of G.P.A. in favour of Nazib Munir Ahmed bythe defendants has been placed on record. Death certificate atExhibit-103 is also placed on record, which shows that she hasdied on 05.07.2021. Therefore, the G.P.A. executed in favour ofShri. Nazib Munpir Ahmed does not remain valid in respect ofdefendant No.3. It is further observed that the order belowExhibit-69 has not been challenged by any defendant till date.Though sufficient opportunity was granted to the defendants tocross-examine the plaintiff, they failed to deposit the amount ofcost. Hence, similar application for setting aside the order is nottenable.9.Learned Advocate appearing for the petitioner submits thatthe suit is filed for declaration of ownership by the plaintiff, whichhas been opposed by the defendants, substantial rights of thedefendants are at stake. The subject matter of suit is a property,hence, the valuable rights of the defendants will be deprived if theorder is not set aside. 10.Admittedly, defendants No.1 and 3 have expired duringpendency of the proceedings. Though the GPA was not validagainst defendants No.1 and 3, it is very much valid to the extentof defendant No.2/petitioner. Hence, considering the substantialand valuable rights of the parties which are at stake, the “no-crossorder” dated 08.11.2016 as well as order dated 02.01.2023 5 924-WP-14131-23.odtdeserve to be quashed and set aside.11.The learned Advocate appearing for respondents/defendantsopposed the prayer made in the petition. It is submitted thatthough an opportunity was granted to the defendants to cross-examine the plaintiff by depositing the cost of Rs.400/-, yet theyfailed to deposit said cost and cross-examine the plaintiff. Hefurther submits that from the application filed by the G.P.A. dated13.11.2021 itself, it is apparent that an application is not validapplication since defendants No.1 and 3 had already expired whenthe application was filed by the G.P.A. on 13.11.2021. Therefore,the application itself was not maintainable as it was not valid.12.I have heard the learned Advocates for the respective partiesand gone through the relevant documents placed on record.13.While issuing notice this Court has observed in paragraphNo.2 of the order dated 07.11.2023, as under;“The petitioner is challenging the order dated02.01.2023 passed below Exhibit 100 in R.C.S. No.332 of 2010 by the learned Joint Civil Judge JuniorDivision, Georai. The learned counsel for thepetitioner submits that due to unavoidablecircumstances, the earlier order of setting aside nocross could not be complied with. In the interest ofjustice, it is desirable to extend an opportunity to thepetitioner.” 6 924-WP-14131-23.odt14.While issuing the notice, this Court expressed that due tounavoidable circumstances, the earlier order of setting aside “no-cross order” has not been complied with. In the interest of justice,to extend an opportunity to the petitioner, it is further directedthat the petitioner should deposit an amount of Rs.10,000/- (Rs.Ten Thousand Only) in the trial Court before the returnable date.15.Upon going through the documents and the order passed bythis Court while issuing notice, has observed that there shall bead-interim stay in terms of prayer clause “C”. Upon perusal of theapplication Exhibit-100/D, it can be gathered that averment ismade that owing to the physical constraints faced by thedefendants, they had appointed G.P.A. to look after the matter.Though the order was passed setting aside “No cross” ordersubject to deposit of cost of Rs.400/-, but due to difficulties statedin the application, the G.P.A. had not deposited the cost.16.Admittedly, defendants No.1 and 3 are no more and aftertheir death, application was filed by G.P.A. on 13.11.2021 on theirbehalf to set aside the order of no-cross passed below Exhibit-64.However, the fact remains that the G.P.A. which executed byoriginal defendant No.2 who is petitioner is still alive, his G.P.A. isvalid and his substantial rights, needs to be taken care of.Considering the unavoidable circumstances as stated in theapplication by the G.P.A., I am satisfied that due to circumstantial 7 924-WP-14131-23.odtconstraints he could not comply earlier order dated 08.11.2016.Hence, in my opinion, it would be appropriate if the plaintiff isappropriately compensated by granting the cost for inconveniencecaused to him by granting opportunity to the petitioner to cross-examine the plaintiff. 17.As a result, the writ petition is allowed by quashing andsetting aside the order below Exhibit-100 passed by the Joint CivilJudge Junior Division, Georai, in R.C.S.No.332 of 2010, dated02.01.2023.18.Though, initially this Court had directed the petitioner todeposit the cost of Rs.10,000/-, however, considering that theorder was passed on 08.11.2016 directing the defendants todeposit cost of Rs.400/- to set aside “No cross” order, andthereafter, the suit remained pending till date due to whichinconvenience is caused to the plaintiff to a considerable extentdue to the pendency of proceedings, it would be appropriate togrant cost of Rs.15,000/- [i.e. Rs.5,000/- in addition to the costsalready deposited in the trial Court.].19.The Writ Petition is allowed in above terms.[MANJUSHA DESHPANDE] JUDGErrd