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1 RCS153/2012, Order below Exh.107
(Milind +1 vs Usha and others )
Order below Exh.107 in R.C.S. No.153/2012
(Passed on : 28/01/2019)
1] The defendant No.1 to 11 have filed instant application to set
aside the order of no cross examination and grant of permission to cross
examine the plaintiff No.2.
4] Heard learned counsels for both parties. Perused the record. The
plaintiffs have instituted the present suit for specific performance of the
contract, possession and in alternative refund of earnest money along with
interest thereon. On 16/01/2013 the defendant No.1 to 11 were filed an
application to frame a preliminary issue and after filing say of the plaintiffs it
was kept for argument. But, on 03/04/2013 the defendant No.1 to 11
themselves prayed for deciding the same application along with the main suit
2 RCS153/2012, Order below Exh.107
(Milind +1 vs Usha and others )
and therefore, the matter was proceeded further for framing of issues and
adducing evidence of plaintiff No.2 and accordingly, the plaintiffs adduced
their evidence. Hence, it cannot be said the defendants were not aware of
the proceeding of the suit and the plaintiffs suddenly adduced their evidence.
Hence, the reason given by the defendant No.1 to 11 is not cogent,
satisfactory and sufficient one.
5] The defendant No.1 to 11 further contended that the matter was
fixed for abatement of the defendant No.1 and therefore, they could not have
crossexamined plaintiff No.2. However, the plaintiffs on 05/04/2013 filed
an application at Exh.62, 63 and 64 for setting aside the abatement against
deceased defendant No.1 and the said applications were allowed on
17/07/2013 and on 24/02/2014 the plaintiffs filed the amended plaint.
Thereafter, the legal heirs of deceased defendant No.1 were brought on
record and on 05/11/2014 the issues were casted and after that on
18/04/2017 the plaintiffs filed an application (Exh.76) for bringing legal
heirs of deceased defendant No.1 on record. Accordingly, on 31/08/2017 his
legal heirs were brought on record and the paint was amended. After that on
26/03/2018 the plaintiffs' witness filed affidavit of examinationinchief and
also proved documents. Thereafter, the defendants sought adjournments but
failed to crossexamine the plaintiff No.2. Though the defendant No.12 to 15
crossexamine the plaintiff No.2. Therefore, on 07/07/2018 no cross
examination order of plaintiff No.2 by them is passed. Hence, the reasons
given by the defendant No.1 to 11 for not crossexamining the plaintiff No.2
are not cogent, satisfactory and sufficient one.
cannot be compensated in terms of money. On the contrary if the above said
order is setaside no loss or prejudice would be caused to the plaintiffs.
Moreover, they can be compensated in terms of money for the delay. Hence,
I am of the considered view that in the interest of justice and as a last chance
the above named defendants be allowed to crossexamine plaintiff No.2. For
the above said reason, I pass the following order :
O R D E R
1] The application vide Exh.107 is hereby allowed.
3] The defendant No.1 to 11 are hereby directed to crossexamine
the plaintiff No.2 positively on next date subject to costs of
Rs.1,500/ (Rs. One thousand five hundred only) to be paid by
them till next date.
4] If above named defendants failed to pay the costs and failed to
crossexamine the plaintiff No.2 on next date, then this order
will be automatically vacated.
Sd/
( P. N. Awale )
Date : 28/01/2019.} Jt. Civil Judge (Junior Division),
NashikRoad.