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Judgment
Shri Tejas Deshpande, learned counsel for the petitioner, on instructions seeks permission to delete respondent Nos.4, 5 and 6. Respondent Nos.4, 5 and 6 are permitted to be deleted at the risk of the petitioners. Deletion be carried out forthwith.
Rule. Rule made returnable forthwith. Heard finally with the consent of parties.
The present petition challenges an order dated 04.12.2025 passed by the learned Civil Judge, Senior Division, Buldhana, below application at Exhibit 126 in Regular Civil Suit No. 48 of 2016. The said application was filed by the defendant nos. 3 to 5 to set aside no cross order dated 04.01.2025 and to permit the defendants to cross-examine the plaintiff.
It is an admitted fact on record that even though the application before the trial Court was filed by the defendant nos. 3 to 5, it is only the defendant no.3 therein who has chosen to challenge the said order. This aspect will have significance in later part of the order.
As can be seen from the narrations in the petition, the petitioner is the original defendant no.3, while respondent no.1 herein is the original plaintiff. The said plaintiff filed a suit before the Civil Judge, Senior Division, Buldhana, bearing Regular Civil Suit No. 48 of 2016 against the petitioner for declaration and permanent injunction. After the pleadings were complete, the matter went for/on trial wherein an evidence on affidavit as contemplated under Order XVIII Rule 4 of the Code of Civil Procedure was filed on 22.01.2020. Further, examination-in-chief was conducted on 18.08.2021. However, since there was no cross-examination conducted on behalf of the defendants, an order was passed on 16.01.2022. The said order was subsequently set aside on condition of payment of costs of Rs.500/-. However, thereafter also cross-examination was not conducted by the defendant nos. 3 to 5.
In the backdrop of this fact, on 04.01.2025 an order of no cross was passed. On 10.07.2025 since the defendants failed to lead evidence, their evidence was closed. In the backdrop of these admitted facts, which are depicted from the order sheets of the trial Court, an application came to be filed on 24.07.2025 below Exhibit 126 praying for setting aside of no cross order dated 04.01.2025 and seeking permission to cross-examine of the plaintiff. The said application has been rejected by the trial Court vide impugned order dated 01.12.2025. Hence this petition.
Shri Deshpande, learned counsel, contends that the trial Court has not correctly appreciated the matter in hand and it ought to have allowed the application subject to payment of certain costs. He however his fair mindedness concedes that there has been some negligence but submits that litigant should not be put to suffer due to the action/omission of the counsel. He however submits that he would conduct cross-examination on 05.09.2026 itself if the application is allowed.
Per contra, Shri N. L. Jailwal, learned counsel for the respondent no.1/original plaintiff vehemently counters the submissions of the learned counsel for the petitioner. He submits that the petitioner herein is unnecessarily delaying the trial for the one or the other reasons. Even though at earlier point of time, application for setting aside the no cross order was allowed. However, the costs was deposited after three months. He submits that the conduct of the present petitioner is enough to non suit him and the trial Court has taken into consideration all these facts. He also submits that the discretion exercised by the trial Court is not shown to be perverse and therefore, no interference in writ jurisdiction is not warranted.
I have considered the contentions canvassed by the learned counsel for the respective parties. As can be seen from the impugned order, the trial Court has considered the history of litigation as is depicted from the order sheet and therefore rejected the application. Be that as it may, only to grant fair opportunity to the present petitioner and since the trial is not proceeded, by way of indulgence, the petition is allowed on following terms:
The impugned order dated 01.12.2025 is hereby quashed and set aside on a condition that the present petitioner only would be entitled to cross-examine the respondent no.1 on 05.09.2026. However, it is made clear that the said cross-examination will be subject to payment of costs of Rs.50,000/- (Rupees Fifty Thousand) to be paid by the petitioner to the respondent no.1 herein on or before 05.09.2026. Payment of costs would be a condition precedent for cross-examination of the present respondent no.1. It is however made clear that it is only the petitioner would be entitled to cross-examine the plaintiff/respondent no.1 and not the defendant Nos.4 and 5 since they have not chosen to challenge the said order. Likewise, only the present petitioner would be entitled to lead evidence in support.
If and application is moved by the present petitioner for leading evidence, same would be decided by the trial Court expeditiously and within 8 days from the date of making such application in accordance with law considering the previous history of the litigation between the parties and expedite the trial.
The cost of Rs.10,000/- deposited by the petitioner in this Court in terms of order dated 12.03.2026 shall be remitted to the Office of the Civil Judge, Senior Division, Buldhana, so as to enable the respondent no.1 to withdraw the same.
Since the suit is of 2016, the trial Court is directed to decide the same within six months from the date of this order.
Rule is made absolute in aforesaid terms.