Allowed

Madhukar Atmaram Bhoir and Ors. v. Baddrudin Abbas Patel

Bombay HC20 Jan 2023WP/884/2023

Case brief

AI extract

What is this about?

The High Court allowed the writ petition to reopen cross-examination of the plaintiff's witness but imposed exemplary costs of Rs. 25,000 as a condition precedent. The petitioner was directed to ensure the witness remains present on fixed dates.

What did the court decide?

Conditional permission to recall and cross-examine the plaintiff's witness (PW-1) subject to payment of exemplary costs and strict compliance with attendance orders.

Madhukar Atmaram Bhoir and Ors. Vs Baddrudin… — Civil Procedure and Limitation | Bombay HC (2023)

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31.WP.884.23.doc

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S.S.Kilaje

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 884 OF 2023

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Madhukar Atmaram Bhoir and Ors... Petitioners
 Versus

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Baddrudin Abbas Patel..Respondent

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Mr. Kishor Patil a/w. Mr. Amol Mhatre and Mr. Sameer Mhatre for Petitioners

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Mr. Mohit Goyal i/by Wadia Ghandy & Co. for Respondent

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CORAM:MILIND N. JADHAV, J.
DATE:JANUARY 20, 2023.

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P.C.:

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1. Heard Mr. Patil, learned Advocate for Petitioners and Mr.

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Goyal, learned Advocate for Respondent.

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2.Perused the impugned order dated 07.11.2022 passed below
Exhibit-1 in R.C.S. No. 479 of 2013 by which the learned Trial Court
has vacated its order dated 01.11.2022 passed below Exhibit-147.

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3. Record indicates that by order dated 01.11.2022 passed

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below Exhibit-147 the learned Trial Court had put the Plaintiff
substantial Conditions which are enumerated in the said order (Page
128 of the Writ Petition).

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4. Accordingly, the date of cross-examination of the Plaintiff

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was fixed on 07.11.2022. On reading the impugned order it is clear
that on that date the Plaintiff was present in the morning session. The

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31.WP.884.23.doc

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order also states that PW-1 Madhukar Atmaram Bhoir alongwith his
Counsel was present at the time of passing of order passed below
Exhibit-147. It appears that the cross examination of the Plaintiff and
PW-1 was fixed at 3:30 p.m. and it transpires that at 3:30 p.m. when
the matter was called out before the learned Trial Court the Plaintiff’s
witness PW-1 as also his Counsel, both were absent. The learned Trial
Court hence revisited the order dated 01.11.2022 passed below
Exhibit-147 and in view of breach of the one of the condition
mentioned therein vacated the stay and closed the evidence of the
Plaintiff. The learned Trial Court thereafter fixed the matter for
evidence of the Defendants.

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5.Mr. Patil would submit that admittedly the Plaintiff’s witness
could not remain present at 3:30 p.m. on that date due to health
reasons which are enumerated in the Petition.

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6.Mr. Goyal would contend that in the event if Plaintiff’s
witness is willing to resurrect his mistake and present himself for cross
examination, he would certainly not oppose the Petition and in that
view of the matter he would have no grievance.This submission of
Mr. Goyal is appreciated by the Court. However, he would contend
that in a companion Writ Petition filed by the Plaintiff, the Plaintiff has
also approached this Court and got the trial stayed in view of the
application made by the Plaintiff.

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7.Be that as it may, the scope of the present Writ Petition

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31.WP.884.23.doc

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involves the order dated 01.11.2022 passed below Exhibit-147, the
breach of which has led to the passing of the impugned order dated
07.11.2022. It is seen that the order dated 01.11.2022 has been
passed in order to enure to the benefit of the Plaintiff and despite that
the Plaintiff has breached that order and the impugned order came to
be passed. However, considering the lis between the parties, parties
cannot be non-suited and not allowed to lead evidence. It is also
equally true that the errant parties / litigants should also be put to
terms, stringent terms.

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8.The learned Trial Court by order dated 01.11.2022 had put
reasonable terms to the Plaintiff. The conduct of the Plaintiff shows
that he has taken the terms lightly and that cannot be allowed. In
view of the same, exemplary costs are required to be imposed upon
the Plaintiff if he seeks to set aside the order dated 07.11.2022 and
seeks cross examination of his witness.

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9.Mr. Patil on instructions submitted that the Plaintiff’s witness
PW-1 Mr. Madhukar Atmaram Bhoir shall remain present before the
learned Trial Court on 30.01.2023 at 12:00 noon on which date the
learned Trial Court is requested by this Court to fix up a schedule and
direct the said witness to remain present thereafter for cross
examination.

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10.It is directed that the witness PW-1 Madhukar Atmaram
Bhoir on behalf of Plaintiff shall adhere to the directions given to the

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31.WP.884.23.doc

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learned Trial Court and remain present on all such dates as fixed by
the learned Trial Court for his cross examination.

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11.However this order is passed subject to payment of costs of
Rs.25,000/- by the Petitioner to be paid to Kirtikar Law Library, High
Court, Mumbai. Payment of costs shall be condition precedent for the
learned Trial Court to take into cognizance this order and allow the
cross examination of the Plaintiff and determine the schedule on
30.01.2023.

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12. Writ Petition disposed.

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[ MILIND N. JADHAV, J. ]

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SONALI Digitally signedby SONALI SATISH SATISH KILAJEDate: 2023.01.21 KILAJE 16:02:25 +0530

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Madhukar Atmaram Bhoir and Ors. v. Baddrudin Abbas Patel

Case brief

What is this about?

What did the court decide?

Madhukar Atmaram Bhoir and Ors. v. Baddrudin Abbas Patel

Case brief

What is this about?

What did the court decide?

What the court decided

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