907-wp-10848-2018.odt
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.10848 OF 2018
Pranav Mahendrakumar Salvi ] Petitioner
Vs.
Komal Pranav Salvi ] Respondent
…..
Ms. T.F. Irani, for Petitioner.
Ms. G.Z. Khan, for Respondent.
….
CORAM : R.G. KETKAR, J.
DATE : 4th October, 2018.
P.C:
Heard Ms. Irani, learned Counsel for the petitioner and Ms.
Khan, learned Counsel for the respondent at length.
2. This Petition filed under Article 227 of the Constitution of
India, takes exception to the order dated 23 rd August, 2018 passed by the
learned Judge, Family Court-4 at Bandra, Mumbai below Exhibit 135 in
Petition No. A-322 of 2014. By that order, the learned Judge rejected the
application made by the petitioner herein for adjournment.
3. Rule. Ms. Khan waives service. Having regard to the narrow
controversy raised in this Petition as also at the request and by consent
of learned Counsel for the parties, Rule is made returnable forthwith and
Petition is taken up for final hearing.
4. In support of this Petition, Ms. Irani submitted that the
petitioner is represented by Ms. Helen Miranda, Advocate. Because of
medical reasons, Ms. Miranda was on leave. In view thereof, she
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conducted cross-examination of the respondent herein. After conducting
the cross-examination for some time, the application Exhibit 135 was
filed on 23rd August, 2018 on the ground that Ms. Irani is not well
versant with the matter and she has conducted the cross based on the
questions prepared by Ms. Miranda, Advocate. The reference was made
to Divorce Petition filed by the petitioner in the Family Court and it was
submitted that it would be incumbent if both the matters are
simultaneously taken up in the interest of justice. The petitioner prayed
for adjournment for further cross-examination of the respondent.
5. The respondent filed reply on the same day, inter alia,
contending that affidavit of examination-in-chief of the respondent was
filed on 24th August, 2017. By order dated 9 th June, 2016 below Exhibit
59, defence of the petitioner herein was struck off. On 21 st July, 2018,
the learned Judge directed the Counsel appearing for the petitioner
herein to conduct cross-examination of the respondent. On 23 rd August,
2018, the learned Counsel for the petitioner had put up approximately
80 questions to the respondent. It was further contended that Divorce
Petition instituted by the petitioner herein was filed later in point of time
and, therefore, the Petition filed by the respondent for restitution of
conjugal rights needs to be decided first. The respondent, therefore,
prayed for closer of cross-examination and rejection of the application
for adjournment. By the impugned order, the learned Judge rejected the
application.
6. Ms. Irani submits that the matter is kept tomorrow i.e on 5 th
October, 2018 before the Family Court and assures that the petitioner
herein will proceed to cross-examine the respondent on the date/s fixed
by the Family Court and will not seek undue adjournment.
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7. Ms. Khan submits that if the Court is inclined to permit the
petitioner herein to cross-examine the respondent, it may be clarified
that in case the petitioner fails to cross-examine the respondent on the
date/s fixed by the Family Court, ‘no further cross order’ will be passed
against the petitioner herein.
8. I have considered rival submissions advanced by learned
Counsel for the parties. I have also perused the material on record. It is
not in dispute that the petitioner has filed Affidavit of examination-in-
chief on 24th August, 2017 and the matter was fixed for her cross-
examination on 21st July, 2018. On 21st July, 2018, the matter was
adjourned to 13th August, 2018. On 13th August, 2018, application was
made on the ground that the petitioner’s Advocate is unable to conduct
the cross as she was in a time bound matter before the Court
Commissioner. On 13th August, 2018, the learned Judge granted
adjournment as a last chance and kept the matter on 23 rd August, 2018.
On 23rd August, 2018, application Exhibit 135 was filed. Ms. Khan
submitted that reason given in the application at Exhibit 135 and the
reason given in the application Exhibit 132 are totally different. Even if, I
accept this submission, the fact remains that the matter was fixed on 21 st
July, 2018 for cross-examination of the respondent and thereafter, it was
adjourned to 13th August, 2018. On 13th August, 2018, as and by way of
last chance, it was adjourned to 23 rd August, 2018. In my opinion,
instead of rejecting the application for adjournment, the Family Court
could have imposed costs on the petitioner herein for prolonging the
matter. By declining to grant adjournment, the learned Judge has closed
cross-examination of the respondent by the petitioner herein. Having
regard to the fact that the defence of the petitioner is already struck out,
the petitioner herein cannot lead evidence. At the highest, the petitioner
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can cross-examine the respondent. If that right is also taken away,
virtually there will be no contest to the Petition for restitution of
conjugal rights.
9. In view thereof, the impugned order cannot be sustained
and as such is liable to be set aside by imposing conditions. Hence, the
following order:
[1] The impugned order is set aside.
[2] The parties agree that they will appear before the
Family Court on the next date of hearing i.e on 5 th
October, 2018. Ms. Khan assures that she will ensure
presence of the respondent in the Family Court
tomorrow. The petitioner herein will proceed to cross-
examine the respondent.
[3] The petitioner shall cross-examine the respondent on
the date/s so fixed by the Judge and will not seek
adjournment. It is made clear that in case, the
petitioner herein fails to cross-examine the respondent
on the date/s fixed by the Family Court, ‘no cross order’
will be passed against the petitioner.
[4] Rule is made absolute in the aforesaid terms.
[5] In so far as prayer clause (c) is concerned, liberty is
reserved to the petitioner herein to make application
before the Family Court.
[6] All contentions of the respondent in that regard are
expressly kept open.
[R.G. KETKAR, J.]
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