Allowed

Ms. Rukhsana Fahim Khan and Anr. v. M/S. Elite Construction

Bombay HC19 Sept 2013WP/4188/2013

Case brief

AI extract

What is this about?

The High Court allowed a writ petition setting aside an order rejecting an application for extension of time to pay court costs. The Court held that refusal would deprive the defendant of the right to cross-examine and set aside the order upon assurance of cooperation and pending cost deposit.

What did the court decide?

Impugned order of 04/03/2013 set aside. Plaintiff allowed to withdraw costs if paid by 26/09/2013.

Ms. Rukhsana Fahim Khan and Anr. Vs M/S. Elite Construction — Landlord and Tenant | Bombay HC (2013)

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55.wp.4188.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 4188 OF 2013

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Ms.Rukhsana Fahim Khan and another

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.. Petitioners

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Vs.

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M/s.Elite Construction .. Respondent

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Ms.Manisha Gawade i/b Mr.Y.E.Mooman, for Petitioners. Mr. Lalit Jain i/b Mr.Dilip Shukla, for Respondent.

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CORAM : R.G.KETKAR, J . DATE : 19^th September, 2013

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P.C. :

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. Heard Ms.Manisha Gawade, learned Counsel for the petitioners and Mr.Lalit Jain, learned Counsel for respondent at length.

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Rule. Mr.Jain waives service for respondent. At the request and by consent of the learned Counsel appearing for the parties, Rule is made returnable forthwith and the petition is taken up for final hearing.

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By this petition under Article 227 of the Constitution of India, original defendants have challenged the judgment and order dated 04/03/2013 passed by the learned Judge, Court Room No. 15 of Court of Small Causes at Bombay below Exhibit 27 in R.A.E Suit No. 557/825 of 2006. By that order, the learned trial Judge rejected the application made by the defendant No.1 for extension of time for depositing the amount of costs of Rs.1,500/- as per order dated

55.wp.4188.13

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05/01/2013.

Original defendant No.1 filed application at Exhibit 22 for setting aside order dated 17/07/2012. By that order, the learned trial Judge directed closure of the cross examination of plaintiff by defendant No.1. While allowing the application at Exhibit 22 on 05/01/2013, the learned trial Judge imposed costs of Rs.1,500/- to be paid by defendant No.1 to the plaintiff till next date. It is not in dispute that next date was 14/01/2013. It is also not in dispute that on that day, defendant No.1 did not pay the costs and matter was adjourned on 22/01/2013. It is not in dispute that even on that date, defendant No.1 did not pay the costs. The present application is taken out by defendant No.1 on 08/02/2013 for extension of time for depositing the costs and by impugned order, the learned trial Judge rejected the application. Ms.Gawade states that defendants will extend full co-operation during the trial and will not seek unnecessary adjournment.

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It is material to note that by order dated 05/01/2013, application at Exhibit 22 filed by defendant No.1 was allowed subject to imposing costs of Rs.1,500/-. The matter was adjourned for nonpayment of costs on 14/01/2013 and 22/01/2013. Having regard to the fact that defendant No.1 shortly applied for extension of time on 08/02/2013, I am of the opinion that the learned trial Judge should have allowed the application rather than rejecting the same as by

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55.wp.4188.13

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refusing extension of time, the valuable right of defendant No.1 to cross examine the plaintiff would be lost for ever.

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In view of the assurance given on behalf of defendants that defendants will extend full co-operation during the trial as also will not seek unnecessary adjournment, in the interest of justice, I am of the opinion to set aside the impugned order. Ms.Gawade states that on or before 26/09/2013, defendant No.1 will deposit the costs in the trial Court. If such costs is deposited, the plaintiff would be at liberty to withdraw that amount unconditionally.

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It is expressly made clear that in case, defendants fail to deposit the amount on or before 26/09/2013, the order dated 04/03/2013 passed by the learned trial Judge shall stand revived without further reference to the Court.

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The parties to act on authenticated copy of this order.

Ms. Rukhsana Fahim Khan and Anr. v. M/S. Elite Construction

Case brief

What is this about?

What did the court decide?

Ms. Rukhsana Fahim Khan and Anr. v. M/S. Elite Construction

Case brief

What is this about?

What did the court decide?

What the court decided

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