1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.1422/2011 GULABCHAND OSTWAL & ANOTHER ..VS.. NARAYAN VAIDYA & OTHERS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri V.M.Deshpande, advocate for petitioners. CORAM : SMT. VASANTI A. NAIK, J. D A T E : MARCH 23, 2011. Heard the learned counsel for the petitioner. There is no infirmity in the order passed by the Civil Judge, Junior Division, Hinganghat, on 8.2.2011, rejecting an application filed by the petitioners/ plaintiffs for leading evidence under Order 18 Rule 3 of the Code of Civil Procedure. It was the case of the plaintiffs/petitioners that, they were the owners of the suit property. However, it was not pleaded in the plaint that they became the owners of the suit property in pursuance of a will by which the bequest of the suit property was made in their favour. Since there was no pleading about the will, there was no question of the defendants challenging the validity of the will or for that matter even denying the will allegedly executed in favour of the plaintiffs. It was the case of the plaintiffs that since the original will was kept in “D” File, at the time of preparing for the examination of the witnesses, the said will was not 2 inspected by them and hence they were not able to examine the scribe of the will. The defendants strongly opposed the application and sought for the rejection of the same. The trial court rightly rejected the application on the ground that the mater was at the stage of final arguments and the application filed by the plaintiffs was liable to be rejected. The court rightly observed that there was no specific pleading about the ownership of the plaintiffs over the suit property on the basis of the alleged will and in the absence of any pleadings in regard to the will there was no question of permitting the plaintiffs to lead evidence under Order 18 Rule 3 of the Code of Civil Procedure for examining the scribe. In the peculiar facts and circumstances of the case, when the plaintiffs had not pleaded that they became owners of the suit property in pursuance of the will, there was no question of granting any permission to the plaintiffs to lead evidence under Order 18 Rule 3 of the Code of Civil Procedure for examining the scribe of the will, specially when the matter was at the stage of final arguments. Since the petition is devoid of merits, the same is dismissed with no order as to costs. JUDGE SMP