7-WP-13798-2021.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 85 WRIT PETITION NO. 13798 OF 2021 Bhamtya Chamarya Gavli (Kokni) and Ors. VERSUS Dharma Balya Kokni ….. Mr. Sushil P. Pandit, Advocate for the Petitioners Mr. Mukul S. Kulkarni, Advocate for Respondent No.1 ….. CORAM : SIDDHESHWAR S. THOMBRE, J. DATE : 09.03.2026 PER COURT : 1. Heard the learned counsel for the respective parties. 2. The present petition challenges the order dated 29.10.2021 passed by the learned Civil Judge, Junior Division, Nawapur in RCS No.28/2017, whereby the application filed by the petitioners for setting aside the ‘no cross’ order dated 09.10.2019 came to be rejected. 3. The learned counsel for the petitioners submits that the petitioners are the original defendants in RCS No.28/2017, which has been filed for declaration, possession and perpetual injunction. The petitioners filed their written statement in the said suit. He submits that the plaintiff filed his affidavit of examination-in-chief and the matter was posted for cross-examination of the plaintiff by the defendants. It is submitted that when the matter was posted for cross- examination of the plaintiff, the learned counsel for the petitioners was engaged in other matters at Nandurbar, and therefore could not attend the proceedings. Consequently, the learned Trial Court passed a ‘no 1 2026:BHC-AUG:10160 7-WP-13798-2021.odt cross’ order on 09.10.2019. Thereafter, on 18.11.2019, the petitioners filed an application below Exhibit–36 seeking to set aside the said ‘no cross’ order, however the learned Trial Court rejected the same. 4. The learned counsel for respondent No.1 supports the order passed by the learned Trial Court and submits that the plaintiff had remained present for cross-examination after filing his examination-in- chief. It was therefore incumbent upon the petitioners to cross- examine the plaintiff, however they failed to do so. Hence, according to him, the learned Trial Court has rightly rejected the application. 5. Having heard the learned counsel for the respective parties and upon perusal of the order passed by the learned Trial Court, it appears that in the interest of justice the matter ought to be decided on its own merits. In the present case, though the matter was posted for cross- examination of the plaintiff on 09.10.2019, due to unavoidable circumstances the learned counsel for the petitioners could not remain present and therefore the ‘no cross’ order came to be passed. It further appears that the petitioners immediately filed an application for setting aside the said order. Once such application was filed, the learned Trial Court ought to have considered the same in the interest of justice. However, the learned Trial Court adopted a hyper-technical approach in rejecting the said application. Therefore, in order to give the petitioners an opportunity to contest the matter and for proper adjudication of the dispute on its merits, I am inclined to allow the present petition. 2 7-WP-13798-2021.odt 6. In view thereof, the writ petition is allowed. The orders dated 09.10.2019 and 29.10.2021 passed by the learned Civil Judge, Junior Division, Nawapur in RCS No.28/2017 are quashed and set aside. The application below Exhibit–36 stands allowed. 7. Both the learned counsel submit that the suit is of the year 2017. Therefore, in the interest of justice, the Trial Court is directed to decide the suit as expeditiously as possible and preferably within a period of six months from today. [SIDDHESHWAR S. THOMBRE, J.] Sameer/March-2026 3