:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.385 OF 2008 PETITION NO.385 OF 2008 PETITION NO.385 OF 2008 Smt.Shalini S. Narvekar ..Petitioner. V/s Shri Nandkumar T. Narvekar & ors ..Respondent. Mrs.Shakuntal Mudbidri for the applicant Shri Railkar for the Respondent No.1. CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : : : 30th April, 2008 30th April, 2008 30th April, 2008 P.C. 1. Leave to amend. Amendment to be carried out forthwith. 2. Rule. Rule made returnable forthwith and heard finally by consent. 3. This petition has been filed challenging the order dated 08-07-2008 of the Trial Court, whereby the application of the petitioner to examine one witness who is a maternal uncle of her deceased husband has been rejected. The evidence was closed on behalf of the petitioner after two witnesses were examined by her. The Respondent No.1 has filed his affidavit in examination-in-chief and Respondent No.1 :2: is yet to be cross-examined and in the meantime, this application came to be filed in the Trial Court. 4. Earlier, an application was filed in Execution Proceedings by the petitioner to be made party to the proceedings in execution of the decree, which was passed in the suit for partition filed by the Respondent No.1, wherein the husband of the present petitioner was declared to be a sharer in the suit property. The petitioner’s husband however, expired sometime in 1996 after the decree was passed in the year 1989. The Respondent No.1 has denied that the petitioner is the wife of his deceased brother. 5. The application to examine the witness was filed belatedly, as according to the petitioner. she was under the impression that the maternal uncle of the deceased husband had expired and that it was only recently that she came to know that he is alive. 6. The main ground on which the application was opposed was that the evidence on behalf of the petitioner was closed and that she had sufficient opportunity to examine the witness before filing of :3: the pursis for closing her evidence and it was merely an attempt to prolong the execution of the decree of 1989 by the petitioner. 7. Having perused the impugned order and the material on record and after hearing the rival contentions of the parties, in my view, the learned Trial Judge ought to have taken more pragmatic view of the matter. The Trial Court ought to have appreciated that the petitioner is a lady who claims the share of her deceased husband though the fact of marriage is denied by the Respondent No.1. She now wants to examine the maternal uncle of her deceased husband to prove her marriage. 8. In my view, the Trial Judge was not correct in rejecting the application. No prejudice will be caused to the Respondent No.1, since the Respondent No.1 would get an opportunity to cross-examine the witness whom she now seeks to examine. Merely because, she has filed pursis for closing the evidence and the fact that affidavit of evidence of Respondent No.1 has already been filed, that by :4: itself would not be sufficient ground to reject the application of the petitioner. 9. In this view of the matter, the impugned order dated 08-01-2008 is set aside. The Trial Court is directed to permit the petitioner to examine the witness as per her application in accordance with law. Needless to say that the respondents who are the parties to the proceedings including Respondent No.1, would get an opportunity to cross-examine the witness. Since the matter is part-heard and the decree is of 1989, I, direct the Trial Court to dispose of the main application within a period of three months from today. 10. The statement given by the counsel for the petitioner to the effect that no other witness on her behalf would be examined, which is recorded in the order dated 22-01-2008 is accepted. 11. Writ Petition is disposed of. Rule made absolute in the aforesaid terms. No costs. :5: ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)