40-WP11292-2026.DOC Santosh IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 11292 OF 2026 Abdulla N Merchant ...Petitioner Versus Prakash Laxman Chanderkar And Ors …Respondents Mr. Sagar Shahani, a/w Ravi Kant Purohit, for the Petitioner. Mr. Rakesh Agrawal, a/w Pallak Ranawat, for Respondent No.1. CORAM: N. J. JAMADAR, J. DATED: 22nd SEPTEMBER, 2026 ORDER:- 1. Heard the learned Counsel for the parties. 2. This petition under Article 227 of the Constitution of India calls in question the legality, propriety and correctness of an order dated 10th June, 2026 passed by the learned Judge, City Civil Court, in Notice of Motion No. 4226 of 2024 in S.C. Suit No. 385 of 2013, whereby the said Notice of Motion preferred by the petitioner to set aside the orders dated 24th November, 2023 and 7th March, 2024, whereby “no cross-examination” and forfeiture of the right of the defendant to adduce evidence, respectively, came to be rejected. 3. The respondent No. 1 had instituted S.C. Suit No. 385 of 2013 for regaining possession of the subject premises under 1/6 SANTOSH SUBHASH KULKARNI Digitally signed by SANTOSH SUBHASH KULKARNI Date: 2026.09.28 10:52:33 +0530 40-WP11292-2026.DOC Section 6 of the Specific Relief Act, 1963. The respondent No. 1 claimed that he was illegally dispossessed of the subject premises on or about 14th July, 2012. The petitioner contested this suit. Issues were settled on 23rd August, 2018. 4. It appears that, the petitioner-defendant did not diligently defend the suit. Thus noting that, the plaintiff had filed an affidavit in lieu of examination-in-chief in the year 2018 and the defendant did not turn up to cross-examine the plaintiff, by an order dated 24th November, 2023, the plaintiff was discharged without cross-examination. Yet, the defendant persistently remained absent. Thus by a further order dated 7th March, 2024, the learned Judge forfeited the right of the defendant to adduce evidence in his defence. 5. The defendant took out Notice of Motion No. 4226 of 2024 seeking to recall the aforesaid orders. In the affidavit in support of the Notice of Motion, it was, inter alia, asserted that the defendant could not cross-examine the plaintiff and adduce evidence as, in the intervening period, the erstwhile Advocate of defendant No. 1 was unwell and the defendant had also undergone a bypass surgery. The defendant, being 69 years of age, was dependent upon the legal advice and assistance 2/6 40-WP11292-2026.DOC rendered by erstwhile Advocate. Therefore, the defendant be provided an opportunity of hearing to defend the suit. 6. The respondent-plaintiff opposed the prayer in Notice of Motion by filing an affidavit-in-reply. 7. By the impugned order, the learned Judge, City Civil Court, was persuaded to reject the Notice of Motion opining, inter alia, that the defendant was not diligent in defending the suit, and attempted to wriggle out of the situation by laying the blame at the doorstep of his erstwhile Advocate. The learned Judge did not find the reasons ascribed by the defendant to recall the earlier orders satisfactorily. 8. Mr. Shahani, the learned Counsel for the petitioner, submitted that the learned Judge, City Civil Court, took a very rigid view of the matter. The fact that both the defendant No.1 and his Advocate were suffering from serious ailments was rather indisputable. In any event, having regard to the situation in the life of the defendant, the orders forfeiting the right to cross-examine the plaintiff and adduce the evidence ought to have been recalled and an opportunity to defend the suit ought to have been given to the petitioner. 3/6 40-WP11292-2026.DOC 9. Mr. Rakesh Agarwal, the learned Counsel for the respondent No.1-plaintiff, countered the submissions on behalf of the petitioner. It was urged that no cause much less a justifiable one to recall the orders was made out. Taking the Court through the affidavit in support of the Notice of Motion Mr. Agrawal would urge that the assertions in the affidavit were as vague as they could be. Even there was no prayer for condonation of delay in taking out the Notice of Motion. In view of such casual and callous approach of the defendant, the learned Judge, City Civil Court, was justified in rejecting the application to recall the earlier orders. 10. Undoubtedly, there is an element of delay, inadvertence and indolence on the part of the defendant. It appears the plaintiff had filed the affidavit in lieu of examination-in-chief in the year 2018 itself. It could not be controverted that the sufficient opportunity was not given to the defendant. However, having regard to the situation in the life of the defendant, who claimed to have undergone bypass surgery in the month of February 2022, the causes ascribed for not appearing before the Court to conduct the cross-examination and lead evidence in defence ought to have been construed with a justice-oriented approach. There is a positive assertion that the erstwhile 4/6 40-WP11292-2026.DOC Advocate of the defendant was also suffering from serious illness. 11. It could be urged that, the illness of the defendant and his erstwhile Advocate does not satisfactorily account for the entire length of inaction on the part of the defendant. However, The overarching principle of promoting the determination of the lis on merit by providing an efficacious opportunity of hearing ought to infirm the decision. 12. In the aforesaid view of the matter, this Court, in the peculiar facts of the case, is inclined to provide an opportunity to the petitioner to defend the suit. At the same time, having regard to the age of the plaintiff and the pendency of the suit, the defendant is required to be put to terms as to costs and the time for cross-examination and adducing evidence in defence. Hence, the petition deserves to be allowed. 13. Hence, the following order: : O R D E R : (i) The petition stands allowed. (ii) The impugned order stands quashed and set aside. 5/6 40-WP11292-2026.DOC (iii) The orders dated 24th November, 2023 and 7th March, 2024, forfeiting the right of cross-examination of the plaintiff and adducing the evidence in defence also stand quashed and set aside, subject to the following conditions: (a) The petitioner-defendant shall pay costs of Rs.25,000/- to the plaintiff-respondent within a period of three weeks from the date of uploading of this order. (b) The petitioner-defendant shall cross-examine the plaintiff's witness(es) on the next scheduled date and, thereafter, if required, without seeking any adjournment. (c) After the cross-examination of the plaintiff's witness(es) is concluded, the defendant shall adduce his evidence within a period of four weeks. (iv) The learned Judge, City Civil Court, seized with S.C. Suit No.385/2013, is requested to conclude the trial in the said suit as expeditiously as possible. (v) The petition stands disposed. [N. J. JAMADAR, J.] 6/6