1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7196 OF 2009 Ratnakar Prabhakar Wedhane & Anr. .. Petitioners Vs Arun Pundalik Sonawane. .. Respondent -- Shri Tushar Sonawane for the Petitioners. Shri P.N. Karlekar for the Respondent. -- CORAM : A.S.OKA,J. DATE : 19TH JANUARY, 2010 P.C. . Heard learned counsel appearing for the parties. On 18th October, 2009, this Court has issued a notice for final disposal of the Writ Petition at the admission state. 2. The Petitioners are the Plaintiffs and the Respondent is the Defendant. On 30th August, 2006, the Petitioners submitted a list of 7 witnesses. It appears that after examining certain witnesses, a purshis recording closure of evidence was filed by the Advocate for the Petitioners at Exhibit – 64. Thereafter, an application was made on 10th September, 2008 at Exhibit – 75 by the Petitioners praying for issuing witness summonses to two witnesses whose names appeared in the list of witnesses filed on 30th August, 2006. A prayer was also made for issuing witness summonses to the said two witnesses and one Vidya Satish Kulkarni. On 10th September, 2008, the said application was allowed by the trial Court by directing that the witness summonses be issued to the witnesses on payment of process fees. On 26th 2 November, 2008, the trial Court passed further order noting that the evidence of the Respondent was closed on 30th July, 2008. The trial Court noted that the application at Exhibit-75 was filed by the Petitioners after cross- examination of the Respondent was completed. By the said order, the trial Court purported to reject the application at Exhibit – 75. Thereafter, on 1st April, 2009, the Petitioners made an application at Exhibit – 90 for issuing witness summons to one Chandrakant Jagannath Kothawade and Yogesh Murlidhar Amrutkar. The witness summons was also prayed for against the Assistant Director of Town Planning for production of documents relating to the suit property. The said application was rejected by the trial Court by an order dated 7th July, 2009. That is the order impugned in the present Writ Petition. 3. The learned counsel appearing for the Petitioners states that the Petitioners are confining their prayer in this Writ Petition for issuing witness summonses to Chandrakant Jagannath Kothawade and Yogesh Murlidhar Amrutkar, whose names already appeared in the list of witnesses at Exhibit-45. The learned counsel appearing for the Petitioners submitted that by an order dated 10th September, 2008, the witness summonses were already ordered to be issued to the said witnesses. He submitted that there was no occasion for the trial Court to pass further orders on 26th November, 2008 and to reject the application at Exhibit -75 which was earlier allowed on 10th September, 2008. He submitted that in view of the order dated 26th November, 2008, the Petitioners were forced to make a fresh application at Exhibit – 90. He, therefore, submitted that the trial Court ought to have 3 allowed the Application at Exhibit – 90. 4. The learned counsel appearing for the Respondent submitted that the cross-examination of the Respondent by the Petitioners was completed on 2nd July, 2008 and, therefore, thereafter the trial Court could not have allowed the Petitioners to examine further witnesses. He submitted that recording of evidence has been completed and the suit is at the stage of arguments and, therefore, prejudice will be caused to the Respondent if a permission is granted to the Petitioners to examine additional witnesses. 5. I have given consideration to the submissions. By the application at Exhibit – 75, the Petitioners prayed for issuing witness summons to Chandrakant, Yogesh and one Vidya Satish Kulkarni. The said application was allowed by the trial Court on the very day. In the order dated 26th November, 2008, the learned trial Judge has observed that the said order which was passed below Application at Exhibit – 75 was inadvertently passed. He, therefore, purported to reject the said application at Exhibit – 75. From the said order dated 26th November, 2008 and from the Reply filed by the Respondent to the Application at Exhibit – 90, it appears that the Respondent did not object to the order dated 10th September, 2008. However, the learned trial Judge, on his own, appears to have recalled the said order and rejected the application at Exhibit – 75. 6. The names of the two witnesses, i.e. Yogesh and Chandrakant, appeared in the list of witnesses filed by the Petitioners on 30th August, 2006. 4 The learned counsel for the Petitioner at this stage states that the prayer in the Petition is confined to permission to examine the said two witnesses. As their names appear in the list of witnesses filed way back in the year 2006, a permission deserves to be granted to the Petitioners to examine the said two witnesses. The prejudice caused to the Respondent can be compensated by ordering payment of costs. The amount of costs is quantified at Rs.7,500/-. 7. Hence, I pass the following order. (a) The impugned order dated 7th July, 2009 is quashed and set aside. (b) The application made by the Petitioners at Exhibit – 75 is partly allowed and it is directed that a witness summons be issued only to the witnesses Chandrakant Jagannath Kothawade and Yogesh Murlidhar Amrutkar. The prayer for issuing witness summons to the Assistant Director of Town Planning, Nashik, is rejected. (c) The Petitioners are directed to pay the costs of Rs. 7,500/- to the Respondent within a period of six weeks from today. Payment of costs will be condition precedent. The amount of costs to be deposited in the trial Court within the stipulated time. 5 (d) If the Petitioners examine the said two additional witnesses, it will be open for the Respondent to recall the other witnesses examined by the Petitioners for further cross-examination. It will also be open to the Respondent to file an additional affidavit in lieu of examination-in-chief and to examine additional witnesses, if any. (e) The Petition is partly allowed in above terms. JUDGE