1 wp6987-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 6987 OF 2011 Surendra Jankiram Kshatriya .. Petitioner Versus Manik Jankiramsa Kshatriya and another ... Respondents Mr. P. S. Dani for the petitioner CORAM : R. Y. GANOO, J. DATED : 27th September, 2011 P.C. 1. Heard Mr. Dani, the learned advocate for the petitioner. 2. An application below Exh.101, filed by the petitioner in Special Civil Suit No.144 of 2007 to examine one Mr. Namdeo Kale as his witness, has been rejected by the learned Second Joint Civil Judge, Senior Division, Nashik by order dated 4th July, 2011. This order is challenged in this petition. 3. It is stated across the Bar that this person - Namdeo Kale is stated to have acted as an attesting witness in the Will purported to have been executed by Jankiram. The Court is informed that out of two witnesses, one witness has been examined by a person who is party to the suit and he 2 wp6987-11 is propounding the said Will. The person who is propounding the Will has chosen not to examine Namdeo Kale as the second attesting witness. The petitioner wants Namdeo Kale to step into witness box. The petitioner wanted to elicit information so as to bring on record the material to raise doubt about the Will purported to have been executed by the said Jankiram. In order to achieve this object, the petitioner made an application seeking permission of the Court to examine Namdeo Kale as his witness. This application has been rightly rejected the the learned Judge. 4. In my view, if the petitioner wants to elicit some information in his favour from Mr. Namdeo Kale, who is stated to be an attesting witness of the will of Jankiram, he can make an application to the Court calling upon the court to direct Namdeo Kale to enter into the witness box to enable the petitioner to cross examine him to prove his case. That course has not been followed. Learned advocate for the petitioner, upon instructions, states that the petitioner shall now make an application for calling upon the trial court to pass an order directing Namdeo Kale to step into the witness box to enable the petitioner to cross examine him. 5. In my view, this petition cannot be entertained. However, it will be open for the petitioner to file an application as suggested in the earlier part 3 wp6987-11 of the order. Surely, that application will be entertained by the learned Jude before whom the suit is pending, in accordance with the provisions of law, without getting influenced by whatever stated in the impugned order as well as in this order. 6. For the reasons mentioned aforesaid, the following order is passed to dispose of the petition. i. No interference is required in the impugned order dated 4th July, 2011 passed below Exh.101 in Special Civil Suit No.144 of 2007 by the Civil Judge, Senior Division, Nashik. ii. If an application is made by the petitioner requesting the court to direct Namdeo Kale to enter into witness box to submit himself to the cross examination, such application shall be considered by the court on merits without getting influenced by whatever stated in the impugned order as well as in this order. iii. There shall be no order as to costs. (R. Y. GANOO, J.)