1 W.P.No.8643/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.8643 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.P.K.Deshmukh, advocate for the petitioner. CORAM : S.V.GANGAPURWALA,J. Date : 16.11.2011. PER COURT : 1. Heard. 2. The petitioner is the original defendant. The petitioner had filed an application for issuing witness summons. The said application was allowed. Witness summons were issued but the witnesses did not turn up nor any report was filed for very long time. The Court closed the evidence of the present petitioner/defendant. Thereafter, the petitioner filed an application Exh.121 for recalling of the order forfeiting the right of defendant to adduce evidence and sought permission to adduce evidence of the defendant and his witnesses. The trial Court vide order dated 16.9.2011 allowed the said application with the condition that the petitioner shall produce the said witnesses himself and if he does 2 W.P.No.8643/11 not produce the witnesses then the order would be passed closing the evidence of the petitioner. Thereafter, on 28.9.2011, the petitioner gave an application to issue summons to witness No.2 as stated in application Exh.101 and the Court passed the order to comply the order passed below Exh.121. The said order is assailed in the present Writ Petition. 3. Mr.Deshmukh, learned counsel for the petitioner submits that the application Exh.101 was pending and the same was prior in point of time. As such the petitioner was under bonafide impression that the witness summons would be issued. The learned counsel submits that the petitioner would get the summons served expeditiously. According to learned counsel, there is no impediment to issue witness summons and the proper course would be to issue summons to the witnesses. Even earlier, the report is not given about the service of summons on the witnesses. In view of that also, it is desirable that the summons be issued to the witnesses. 4. It is not disputed that the defendant examined last witness on 23.2.2011 and thereafter, application was filed to issue witness summons. The Court had issued witness summons but for long time the witnesses were not produced nor any report of their service was produced. Thereafter, the Court had forfeited the right of the defendant to adduce the evidence. The defendant thereafter, had 3 W.P.No.8643/11 filed an application Exh.121 for recall of the order forfeiting the right to adduce evidence and sought permission to adduce evidence. The trial Court on 16.9.2011 passed the order allowing the said application on condition that the defendant/petitioner shall produce the witnesses on the next date himself and if he does not produce the witnesses on the next date, the evidence shall be closed. The said order was not challenged by the petitioner but was accepted. The petitioner thereafter filed an application Exh.125 for issuing witness summons. In view of the order dated 16.9.2011, passed below Exh.121, the Court was right in not entertaining the application Exh.125 and passing the impugned order, thereby directing the petitioner to comply the order passed below Exh.121. No error is committed by the Court while passing the impugned order. 5. In view of that, the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.16.11.2011. asp/office/wp864311 4 W.P.No.8643/11