Allowed

Vikas Dula Patil v. Purshottam Dula Patil and Anr.

Bombay HC10 Jul 2023WP/7525/2022

Case brief

AI extract

What is this about?

Writ petitioner challenged the trial court's rejection of his application to set aside a no-evidence order and impose costs. The High Court by indulgence allowed a last opportunity for evidence deposition, quashed the impugned order, and imposed an enhanced cost of Rs.10,000, directing expedited trial within one year.

What did the court decide?

Impugned order quashed; petitioner permitted final opportunity to lead evidence subject to payment of Rs.10,000; trial to conclude within one year.

Vikas Dula Patil Vs Purshottam Dula Patil and Anr. — Partition | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.7525 OF 2022

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Vikas Dula Patil ...Petitioner Versus

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Purshottam Dula Patil and Another

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..Respondents

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Mr. M. J. Bhatt for the petitioner. Mr. Sachin D. Kadam for respondents.

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——————

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Coram : Sharmila U. Deshmukh, J. Date : 10^th July , 2023.

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P. C. :

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Heard.

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The challenge in the Petition is to the order dated 24^th March, 2022 rejecting the Petitioner’s application for permission to deposit the cost of Rs.2,000/- imposed vide order dated 20^th August, 2021 and to set aside the no evidence order.

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The Petitioner is the original Plaintiff in a suit which has been filed in the year 2011 seeking a declaration and injunction against the Respondents in connection with the suit property. The evidence afodavit came to be filed on 25^th September, 2017 and on 21^st November, 2019 the matter was listed for cross-examination of the Petitioner. As he was not present on the same day, the evidence

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closure order came to be passed against him and on the same day an application was moved by the Petitioner for setting aside the no evidence order. The trial Court passed an order setting aside the no evidence order subject to payment of cost of Rs.500/-. This cost of Rs.500/- was not paid by the Petitioner claiming that there was some miscommunication between him and his counsel and as such an application came to be filed seeking to set aside the evidence closure order. By order dated 20^th August, 2021, in order to give the Petitioner an opportunity to lead evidence, the trial Court allowed the application by imposing a cost of Rs.2,000/-. A specific direction was given by the said order that the cost as directed to be paid by the next date of hearing and the Petitioner to remain present for crossexamination. The payment of the cost as well as the presence of the Petitioner on the next date of hearing was the condition precedent to setting aside the no evidence order. Inspite of the same the Petitioner did not comply with the order and on 24^th March, 2022 the application was made for compliance of the order dated 20^th August, 2021. The said application was rejected giving rise to the present Petition.

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Learned counsel appearing for the Petitioner has taken this Court through various orders and would submit that on the first order on account of the miscommunication between the Petitioner and his counsel the same could not be complied with. As regards the

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subsequent order of the trial Court dated 20^th August, 2021 he would submit that during this period the country was reeling under Covid-19 Pandemic and as such the same could not be complied with.

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Per contra, learned counsel appearing to the Respondents submits that various opportunities were given to the Petitioner after afodavit of evidence was filed in the year 2017 for the crossexamination, which is evident from the order dated 20^th August, 2021. He would further submit that inspite of the order being set aside subject to payment of cost the same was not complied by the Petitioner. He would further submit that the Petitioner has filed his afodavit of evidence and there is no cross order by the trial Court and the matter is now fixed for final arguments.

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Considered the submissions of the parties. The sequence of events which has been narrated above discloses that the Petitioner has not been diligent in pursuing the proceedings. The suit is of the year 2011 and even in the year 2023 the hearing of the suit has not been completed. The reason for the same lies squarely upon the plaintiff-Petitioner whose afodavit of evidence came to be filed in the year 2017 and till 2022 inspite of various opportunities being given to him has failed subject himself to cross-examination leading to delay in proceedings. Ordinarily this Court would not have been inclined to come to the aid of such litigant however considering that the suit is

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regards the declaration of half share in the suit property that is the partition of the suit property in which the defendant himself would be vitally interested, in my opinion, by way of an indulgence the Petitioner can be permitted a last opportunity to complete his evidence.

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In light of the above, the impugned order dated 28^th March, 2022 is hereby quashed and set aside subject to payment of cost of Rs.10,000/- to be paid to the Respondents within a period of one week from the date of uploading of this order. This Court is informed that pursuant to the stay granted by this Court proceedings are deferred by the trial Court. The parties to appear before the trial Court on 17^th July, 2023 with the copy of this order. The petitioner is directed to present himself on every date of hearing and no adjournment to be granted to the Petitioner. Considering that the proceedings are of the year 2011 the trial Court is requested to decide the same expeditiously and in any event within a period of one year from today.

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The Writ Petition stands allowed.

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[Sharmila U. Deshmukh, J.]

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Vikas Dula Patil v. Purshottam Dula Patil and Anr.

Case brief

What is this about?

What did the court decide?

Vikas Dula Patil v. Purshottam Dula Patil and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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