BHAMTYA CHAMARYA GAVLI (KOKNI) AND OTHERSversusDHARMA BALYA KOKNI

2026:BHC-AUG:10160
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                     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

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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.




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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




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