948-WP-9445-2022.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9445 OF 2022 Mangla Baburao Devkar And Another VERSUS Raibhan Yadav Devkar And Others *** • Mr. S. G. Dodya, Advocate for the Petitioners • Mr. S. r. Deshpande, Advocate for the Respondent Nos. 1 and 2 • Mr. U. S. Mote, Advocate for Respondent No. 3 *** CORAM : R. M. JOSHI, J DATE : FEBRUARY 11, 2025 PER COURT : 1. This Petition takes exception to orders dated 15.03.2022 passed below Exh. 105 in RCS No. 249/2015 whereby learned Trial Court has rejected application filed by Petitioners for setting aside no cross order. 2. There is no dispute about the fact that the Petitioners are Defendants in RCS No. 87/2012 which came to be filed for declaration and injunction. Petitioners/Original Defendant Nos. 1 and 2 filed written statement and contested the suit. Issues were framed. Plaintiff examined himself by filing affidavit in lieu of examination-in-chief on 16.07.2014. Since defendants did not cross-examine Plaintiff, three Umesh PAGE 1 OF 4 2025:BHC-AUG:4035 948-WP-9445-2022.odt orders were passed on 12.08.2014, 13.11.2014 & 16.04.2019 for proceeding without cross. Plaintiff also examined another witness and filed his affidavit on 15.09.2014. This witness too was not cross-examined by Defendants, hence, no cross order was passed on 03.12.2014. Defendants kept moving application one after another. Trial Court considered those applications, however, finally refused indulgence by passing impugned order dated 15.06.2022. 3. Learned Counsel for Petitioners submit that the Defendant No. 1 is a lady and her son was minor then and in the interest of justice order impugned may be set aside. 4. Learned Counsel for Respondents/Original Plaintiff has drawn attention of the Court to the order passed by this Court dated 01.04.2014 passed in Writ Petition Nos. 1528/2014 and 128/2014 directing decision of the suit expeditiously within a period of six months. It is his submission that the conduct of the Defendants indicate that they are intending only too drag proceedings further. Thus, he supports the impugned order. Umesh PAGE 2 OF 4 948-WP-9445-2022.odt 5. This Court though finds substance in the contention of the learned Counsel for Respondent that conduct of the Respondent indicates that the Defendants have sole intention of protracting the proceedings. However, this Court while issuing notice in this Petition had stayed the proceedings before the Trial Court by order dated 04.10.2022. Thus, in any case, proceedings before the Trial Court are stayed for a period of three years. Now even if the Petition is dismissed, the stage of the proceeding would be for evidence of Plaintiff. 6. At this stage, learned Counsel for Petitioners, on instructions, makes statement that the Petitioners are ready to pay cost of Rs. 25,000/- (Rupees Twenty Five Thousand Only) to the Respondents/Plaintiffs if the order is set aside and an opportunity is granted to the Petitioners to cross- examine Plaintiff and witness no. 2. 7. In view of voluntary statement made by the Petitioners and as the Trial Court can be directed to decide the suit within a period of six months from today, this Court finds it necessary to exercise its Umesh PAGE 3 OF 4 948-WP-9445-2022.odt discretion to set aside the impugned order. Hence, Petition stands disposed of in following terms: a) Impugned order dated 15.06.2022 passed below Exh. 105 in RCS No. 649/2015 stand set aside. b) Petitioners are permitted to cross-examine Plaintiffs and PW-2 subject to payment of cost of Rs. 25,000/- payable to Plaintiffs. Cost be paid within a period of a week from today. If cost is not paid within this time, the Petition shall stand dismissed and this order will be non est. c) In case cost is paid, parties are directed to appear before the Trial Court on 24.02.2025. Plaintiffs/Respondents are directed to remain present so also to get his witness PW-2 present before Trial Court. Petitioners/Original Defendants to cross-examine witnesses on that day itself. It will be open for the Trial Court to pass order of no cross if Defendants fail to cross-examine these witnesses. d) Trial Court is directed to decide RCS No. 649/2015 (Old No. 87/2012) within a period of six months from today. (R. M. JOSHI, J.) Umesh PAGE 4 OF 4