1 WP4398.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4398 OF 2009 Pankaj Trilokchand Pande, Aged 37 years, Occupation Business, Resident of Chauraha, Aurangabad Petitioner V E R S U S 1 Pravin s/o Kapoorchand Surana, Aged 39 years, Occupation Business Respondents 2 Mrs. Seema w/o Pravin Surana, Age 31 years, Occupation Housewife, Both R/o Flat No. 6, Trilok Palaza, Shahajung, Aurangabad Mr. A.S. Bajaj, Advocate for the petitioner Respondent Nos. 1 & 2 though served, absent CORAM : A.V. NIRGUDE, J. DATED : 3rd May, 2011 ORAL JUDGMENT : 1. This writ petition challenges two consecutive orders dated 2nd December, 2008 and 30th March, 2009 on Exh. 30 and Exh. 34, respectively, passed by the learned 5th Jt Civil Judge, Senior Division, Aurangabad in Special Civil Suit No. 32 of 2007. 2. The petitioner is the defendant before the lower Court. It is a suit for possession of immovable property and recovery of amount. The respondents are the defendants. It is an admitted fact that the petitioner constructed a building having several flats and agreed to sell one of the flats to the respondents and executed an agreement for sale of the said flat and a correction deed in favour of the respondents. The said agreement and correction deed were registered. It is further admitted fact that the respondents produced the original agreement and the deed which were the title documents, with a bank for securing loan to purchase the suit property. 2 WP4398.09 It is the case of the petitioner that the respondents had committed breach of the agreement. In order to prove the documents, the petitioner made their application (Exh.30) for issuance of witness summons to the Manager of the Bank for production of the documents, referred to above. But, the learned Judge of the trial Court rejected the application mainly because an affidavit in support of the application was not filed and also because the witness was not party to the suit. This order obviously is erroneous because the learned Judge ignored the provisions of Order 16 Rule 6 of the Code of Civil Procedure, which reads as under : “6. Summons to produce document – Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.” 3. The learned Judge of the lower Court should have realized that the respondents did not deny execution of the documents, referred to above. But, the original documents were not before the Court and they were not inclined to admit the genuineness of the copies of the documents which were produced on record. The learned Judge should have realized that this was in fact a delaying tact albeit a crude one employed by the respondents. In such situation, the petitioner had no other alternative, but to make an application under Order XVI Rule 6 of the Civil Procedure Code seeking summons for production of the documents. The application was in fact quite innocuous and should have been allowed. In view of this, there is no need to discuss the propriety of the second order passed on Exh.34. Petition 3 WP4398.09 should therefore succeed. Rule is made absolute in terms of the following order : ORDER 1. The impugned order dated 2nd December, 2008 on Exh. 30, passed by the learned 5th Jt Civil Judge, Senior Division, Aurangabad in Special Civil Suit No. 32 of 2007 stands set aside. 2. The application at Exh. 30 stands allowed. 3. The learned Judge of the trial Court shall issue witness summons to the concerned witness. ( A.V. NIRGUDE, J. ) SRM/wp/4398/09/3/5/11/ok