{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6937 OF 2008 1. Arun Chandrakant Bhise R/o Shiradhon, Tq-Tuljapur Dist-Osmanabad 2. Sahebrao Chandrakant Bhise R/o Shiradhon, Tq-Tuljapur, Dist-Osmanabad now at Vivekanand Nagar, Papnash Road, Tuljapur, Dist-Osmanabad PETITIONERS VERSUS 1. Yuvraj Bhaurao Bhise R/o Shirdhon, now Behind Mauli Lodge Latur Road, Tuljapur Dist-Osmanabad. 2. Vijaykumar Yovraj Bhise R/o Shirdhon, now Behind Mauli Lodge Latur Road, Tuljapur Dist-Osmanabad. 3. Mukesh Yuvraj Bhise R/o Shirdhon, now Behind Mauli Lodge Latur Road, Tuljapur Dist-Osmanabad. RESPONDENTS {2} ....... Mr.S.S.Chaudhari, Advocate for the petitioners, Mr.K.K.Kulkarni, Advocate for the respondetns ....... [CORAM : A.V.POTDAR, J.] DATE : 15th June 2009 ORAL JUDGMENT: 1. By the present petition, filed under Articles 226/227 of the Constitution of India, the petitioners have challenged the orders dated 18.10.2008 passed below Exhibits-97 and 99 in Special Civil Suit No.43/2002, by the Civil Judge, Senior Division, Osmanabad. 2. Rule. Considering that a very small point is involved in the present petition, Rule made returnable forthwith. With the consent of the parties heard finally at the stage of admission. 3. The facts, which gave rise to file the present petition, can be summarized as follows- Special Civil Suit No.43/2002 is filed by the petitioners against the respondents for declaration and partition and separate possession. The said suit is contested by the respondents by filing written statement. On the basis of pleadings of the parties, issues are framed by the trial court on 16.07.2007. Thereafter, petitioners {3} examined petitioner No.2 as witness No.1 vide his affidavit as examination in chief on 26.08.2007. However, he was cross examined on 16.08.2008 i.e. after a period of one year. On 26.08.2008 and 04.09.2008 applications were moved by the petitioners, which came to be allowed by the court, however application dated 22.09.2008, moved by the petitioners came to be rejected on the ground that the petitioners have not disclosed the names of persons to whom they intend to examine. After rejection of this application, the matter was posted for evidence of defendants on 18.02.2008. On that day an application was moved to issue fresh summons, which also came to be rejected by the trial court vide order passed below Exhibit-97. Thereafter, on the same day an application came to be moved at Exhibit-99 thereby contending that as the petitioners were unable to get certified copies of the record the delay caused in taking the witness summons on the witnesses to whom the petitioners intend to examine. It was requested that as the suit is in respect of immovable property, the application be allowed and opportunity be given to the petitioner to lead evidence in support of their case. The said application also came to be rejected by the trial court on the ground that inspite of being sufficient opportunity given to the petitioners, they failed to examine witnesses in support of their case. The orders passed below Exhibits-97 and 99 are the subject matter of the present petitions. 4. The respondents have filed their affidavit in reply on {4} 31.12.2008, contending that inspite of sufficient opportunity being offered to the petitioners to lead evidence, they failed to avail the same and hence it is requested to dismiss the writ petition in liminie. 5. In the light of this backdrop, heard arguments of learned advocate appearing for petitioners followed by the arguments of advocate appearing for respondents. The point which requires to be considered is as to whether there was any delay in taking the witness summons, as observed by the trial court and alleged by the respondents. The respondents have submitted in the affidavit in reply that in case this Court intends to allow the applications Exhibits-97 and 99, by setting aside the order passed by the trial court, then heavy cost be imposed on the petitioners. 6. The petitioners have produced certified copy of the Roznama, which is in consonance with dates mentioned in the affidavit in reply. From the record it can be inferred that whether the observations regarding sufficient opportunity and delay are the sufficient causes to reject applications. From the affidavit in reply and also from the Roznama, it is clear that examination in chief of petitioner No.2 is recorded in the form of affidavit on 26.08.2007. thereafter, applications were moved by the petitioners seeking adjournments and the same were allowed. On 18.10.2008 an application came to be moved by the petitioners for issuance of witness summons at Exhibit-97 and again on the same day at {5} Exhibit-99 another application came to be moved. However, the trial court rejected both the applications on the ground that sufficient opportunity was given to the petitioners to lead evidence. I am unable to understand that when opportunity was given to the respondents to complete the cross examination of the petitioner No.2, for a period of more than one year, then what was the reason to deny opportunity to the petitioners. The facts disclosed about the dates of adjournments in the affidavit in reply, indicate that the discretion is not properly exercised by the trial court and sufficient opportunity is denied to the petitioner to lead evidence. One can understand that on the date of filing of affidavit of examination in chief, cross examination was completed and thereafter, after giving sufficient opportunity, the same is not availed by the petitioner in that situation the trial court might have justified in rejecting the applications. However, if the trial court waited for a year to complete cross-examination of the first witness of the petitioner and at that time not using the discretion, in this situation it can only be inferred that the trial court has not properly exercised the discretion resulting in passing the perverse orders below Exhibits-97 and 99. Hence, the orders passed below Exhibits-97 and 99 deserve to be quashed and set aside. Accordingly, the orders passed by the learned trial Court below Exhibits-97 and 99 are hereby quashed and set aside. 7. Rule is thus made absolute on the terms indicated above. Writ petition stands disposed of with no order as to costs. {6} The parties are hereby directed to appear before the trial court within two weeks from today i.e. on 29.06.2009 and thereafter the trial court to pass appropriate orders for issuance of summons on fresh application of the petitioners and then to proceed with the trial in accordance with law. [A.V.POTDAR, J.] drp/wp6937-08