1 988-WP-10567-2026.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 988 WRIT PETITION NO. 10567 OF 2026 Laxmibai Baburao Shinde And Others VERSUS Ishwari Mahesh Shinde And Others ... Mr.Patil Ujwal Subhash for the Petitioners. Adv. V.V. Deshmukh for Respondent Nos.1 and 2. … CORAM : MANJUSHA DESHPANDE, J. DATE : 04.09.2026 PER COURT : 1. The Petitioners are challenging the order passed below Exhibit-102, wherein the application filed by the Petitioners that is original defendant nos.1 to 4 for setting aside the ‘No Cross’ order dated 19th January, 2026 at Exhibit-79 that is cross-examination of PW-2 and to set aside the ‘Evidence Close’ order dated 26th February, 2026 against them on the ground mentioned in the application, has been rejected vide order dated 27th July, 2026 by the Civil Judge Senior Division, Omerga. 2. Respondent Nos.1 and 2 have filed Special Civil Suit No.5 of 2016 before the Civil Judge Senior Division, Omerga claiming partition, separate possession, perpetual injunction and rendition of accounts in respect of several joint family properties. The present Petitioners have appeared in the suit and contested the same by filing written statement. It is submitted that the plaintiffs filed evidence affidavit below Exhibit-78 and filed evidence affidavit of PW-2 below Exhibit-79. Sunny Thote 2026:BHC-AUG:41177 2 988-WP-10567-2026.odt 3. The learned Advocate for the Petitioners submits that the defendant nos.1 to 4 have examined PW-1 on 8th December, 2025. However, PW-2 could not be examined since the PW-2 was absent. On the next date, the Advocate for the defendants was absent. On 19th January, 2026, the Evidence Close pursis is filed by the Advocate for the plaintiffs and No Cross order came to be filed against the present Petitioners, since the Advocate for the present Petitioners was not present. Inspite of grant of adjournment by the Court, the Advocate for the present Petitioners could not remain present, since he travels from Aurangabad to Omerga where the suit is presently being filed. It is further submitted that due to absence of the Advocate for defendant nos.1 to 4 on 26th February, 2026, the Trial Court passed an order of closing the evidence of defendant nos.1 to 4. Being aggrieved by both the orders and application for setting aside ‘No Cross’ order passed on Exhibit-79 dated 19th January, 2026 and Evidence Close order dated 26th February, 2026, was filed by the present Petitioners on 27th March, 2026, the present Petitioners have stated that defendant nos.1 to 4 are the female members and reside at different places such as Aurangabad, Pune and Gangapur, therefore, due to lack of coordination, their Advocate could not remain present on the given dates, and it was not possible to examine PW-2. It is also submitted that considering the geographical distance between Omerga and Aurangabad, the Advocate engaged by them was facing difficulties to commute on the dates assigned by the Court. As a result of which he could not remain Sunny Thote 3 988-WP-10567-2026.odt present on the given dates. It is, therefore, prayed that ‘No Cross’ order as well as the ‘Evidence Close’ order should be set aside. An order came to be passed on the said application vide order dated 27th July, 2026 rejecting the application of the Petitioners with cost of Rs.5,000/- and suit was kept for evidence of defendant no.5. 4. The learned Advocate for the Petitioners contends that the Petitioners undertake to cross-examine the PW-2 on whatever date this Court would fix and thereafter would not delay the proceedings in this suit. Considering the reasons stated in the application, he would submit that the defendants were facing genuine difficulty, therefore, the defendants as well as their Advocates could not remain present on the given dates, which is not intentional or deliberate or even a delay tactic as observed by the Court in the impugned order. 5. Per-contra, the prayer made by the Petitioners is opposed by the learned Advocate appearing for the defendants, he would submit that the Roznama discloses that the Advocate for the defendants as well as defendants have remained absent consistently during the Court proceedings. He would point out that even prior thereto an order was passed by the Court on 3rd September, 2025, setting aside the ‘No Cross’ order, vide order below Exhibit-85 subject to payment of cost of Rs.1,000/-. Therefore, in view of the aforementioned background, the application filed by the present Petitioners has been rightly rejected by the Civil Judge Senior Division, Omerga. Sunny Thote 4 988-WP-10567-2026.odt 6. I have considered the submissions of the respective Advocates and I have perused the order impugned. Admittedly, even on the early occasion the present Petitioners have remained absent in the suit, therefore, ‘No Cross’ order has been passed, which was set aside by passing an order below Exhibit-85 subject to deposit cost of Rs.1,000/-. Inspite of that immediately thereafter, they have failed to cross-examine PW-2. Although, admittedly PW-2 was absent on 8th December, 2025, but thereafter the Advocate for the defendants has consistently remained absent for a long period and only when the order for ‘Evidence Close’ is passed, the present application has been filed for setting aside both the orders. However, considering the nature of suit and the rights of the parties involved, it would not be appropriate to deprive the original defendants to cross-examination as well as lead evidence in the suit. Therefore, in my view, it would be appropriate to grant one more opportunity to the original defendant nos.1 to 4 to participate in this suit by setting aside the ‘No Cross’ order and ‘Evidence Close’ order, however it is made clear that no such further applications filed by the defendants to be entertained by the Court below. It would serve the interest of the parties by compensating the plaintiffs with the cost of Rs.15,000/-. 7. In view of the aforementioned observations, the Writ Petition is allowed. The order passed below Exhibit-102 is quashed and set aside subject to payment of cost of Rs.15,000/- to be paid to the plaintiff before the next date. The parties shall remain present before the Trial Court on Sunny Thote 5 988-WP-10567-2026.odt 8th September, 2026, with the witness, i.e., PW-2. 8. The plaintiffs shall remain present with the PW-2, who is required to be examined on 8th September, 2026. 9. With the aforementioned directions, the Writ Petition is disposed off. [ MANJUSHA DESHPANDE, J. ] Sunny Thote