1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 589 OF 2009 Keshav S/o.Ambadas Ekhande, Age-31 years, Occu-Nil, R/o.Ganeshwadi, Tq.Gangapur, Dist : Aurangabad, Through Power of Attorney Holder, Shri.Sushil S/o.Rampal Baldawa, Age-44 years, Occu-Business, R/o.Divandevdi Aurangabad, Dist : Aurangabnad PETITIONER VERSUS 1. Shivdas S/o.Laxman Chavan, Age- Years, Occu-Nil R/o.Chitegaon, Tq.Paithan, Dist : Aurangabad 2. Subhash S/o.Laxman Chavan, Age- years, Occu-Nil, R/o.Chitegaon, Tq.Paithan, Dist : Aurangabad 3. Kesharbai W/o.Ambadas Ekhande, Age-63 years, Occu-Household, R/o.Chitegaon, Tq.Paithan, Dist : Aurangabad 4. Tahsildar, Paithan, Tq.Paithan, Dist : Aurangabad RESPONDENTS Mr.S.M.Vibhute, advocate for petitioner Mr.P.M.Yelnoorkar, advocate for respondents (CORAM : A.V.POTDAR, J.) DATE : 18/06/2009 2 ORAL JUDGMENT : 1. By the present writ petition under Article 226, 227 of The Constitution of India, the petitioner/original plaintiff before the Trial Court has challenged the order dated 06/01/2009 passed below Exh. 62 by the 4th Jt.Civil Judge, S.D. Aurangabad in RCS No.206/2005. 2. Rule. 3. Rule made returnable forthwith. 4. It appears that the plaintiff herein has filed the suit for declaration that the sale deeds which are mentioned in the plaint are null and void and for the possession of the suit properties as well as for perpetual injunction against the defendants herein. The suit is contested by the defendants by filing written statement. After the issues are framed, the suit is listed for evidence of the parties. It further appears that an application is moved at Exh.62 by the petitioner plaintiff herein for issuance of witness summons wherein he has given the list of witnesses and it is also mentioned in the said application that these witnesses are knowing the history of the joint family income of the family of the plaintiff and knowing about the transactions in respect of the suit property, and hence prayed for issuance of summons to these witnesses as the petitioner intended to examine these witnesses on his behalf. It further appears that on the same day, the respondents defendants have filed their say on the 3 application itself to oppose the said application by stating that the plaintiff has not given the names of the witnesses prior to starting of the evidence under the provisions of CPC, however on what point he wanted to examine the witnesses was not shown. In support of his contention, he placed in my hand the ruling reported in AIR 2000, Madras 494, in the matter of Sri Aurobindo Ashram Trust and another versus Kamal Dora about the scope of Order 16 Rule 1 & 2 of CPC, about summoning of witnesses. Party must reveal to Court purpose for which witness is proposed to be summoned. Objections raised. Bonafides of request has to be proved for which the observations are in para no.9 and 10 of the judgment cited. 5. After hearing both the parties, the learned Trial Judge has passed the order below Exh.62 which is required to be reproduced as under : “The application at Exh.62 is seen and filed with liberty to the plaintiff to examine the said witnesses suo moto without court summons.” After reading this order, one fact is clear that examination of these witnesses is not denied by the Trial Court, but the request to issue summonses to these witnesses is rejected. Then one thing is clear from the last para of the application at Exh.62 wherein the purpose to examine these witnesses are disclosed by the petitioner/plaintiff before the Trial Court. Hence at the first instance, the ruling on which the learned advocate for respondent is relying is not applicable in the present case. 6. Now the next point required consideration is that if the 4 examination of the witnesses is not refused, then it is for the Court to provide every assistance to the litigant before the Court to procure the presence of the witnesses to whom the plaintiff want to examine. After reading the order under challenge and the observations therein in para no.3, it is clear that the order is passed by the Learned Trial Judge without application of mind, which cause hurdle in justice delivery system. Justice is to be delivered by giving assistance to the litigant to put up their case for their right and not to deny the opportunity to lead their evidence not only to give justice to the parties but to meet the ends of justice. 7. In the premise, the order is bad in law and perverse, and require to be quashed and set aside. In the premise, the order passed by the Trial Judge below application Exh.62 is partly modified and application is allowed. 4th Jt.Civil Judge,S.D.Aurangabad to issue summons as prayed for. The date to be fixed with the consultation of the respective advocates of the parties as per the arrangement of the Court. 8. Rule thus made absolute as indicated above. Writ petition stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) khs/wp589-09