1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1095 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1095 OF 2011 *** 1. Heard Advocate Shri Deshmukh for the Petitioner/ original defendant, Advocate Shri Patil holding for Mr. Gunale for Respondent No.1 (original plaintiff) and Respondent No.5 (original defendant_ as also Mr. Tandale for Respondent Nos.6 to 10 (original defendants). 2. In a suit for partition, one of the defendants, after filing of counter claim, sought recall of witness examined by defendants for further cross examination and that application has been allowed on 19th October, 2007. Shri Deshmukh contends that it is without any opportunity to the petitioner. He further states that when this was pointed out to the trial Court by moving an application at Exhibit-113, that application has been rejected on the ground that basic order dated 19th October, 2007 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1095 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. allowing such recall had attained finality. 3. The provisions contained in order XVIII Rule 17 C.P.Code have been amended in 2002. The scope available thereafter to Court is laid down by Honourable Apex Court in its judgment in the case of "Salem Advocate Bar Association (II) V/s Union of India" reported in 2005 (6) SCC 344 and more recently in Civil Appeal Nos.2795-2796 of 2011 [K.K.Velusamy V.s N. Palaanisamy] on 30th March, 2011. The impugned order passed in 2007 does not record any reasons. It appears that the same been passed without giving an opportunity to the petitioner. In the circumstances, without going into more details, said order dated 19th October, 2007, passed below Exhibit-101 is hereby quashed and set aside. The said application is restored back to the file of trial Court for taking fresh decision upon it, in accordance 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1095 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. with law. Rule is made absolute accordingly. No costs. 4. At this stage, it is pointed out that the suit as filed is of the year 1993. Hence, trial Court shall attempt to take appropriate decision on that application and also attempt to decide the suit at the earliest. [B.P.DHARMADHIKARI, J.] Dated:26/04/2011. ans/1095