1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4660 OF 2008 Bhairu Ishwar Chavan Petitioner versus Dadarao Shrimant Takmoge and others Respondents R.M.Khairdi for petitioner. Anand S. Kulkarni for respondent no.1. R.S.Alange for respondent no.3. CORAM : A.S.OKA, J. DATE : 15th April 2010 PC : 1. On the earlier date parties were put to notice that the petition will be disposed of finally at the stage of admission. The petitioner is the plaintiff and the respondents are the defendants. An application was made by the petitioner on 26th February 2008 at Exhibit-142 for issuing witness summons to as many as 14 witnesses. By the impugned order dated 26th February 2008, the said application has been rejected. 2. The learned counsel for the petitioner in instructions of the petitioner states that the petitioner desires to examine the witnesses at sr.nos.3,7,11,12 and 14 mentioned in the application at Exhibit-42 and he does not intend to examine other witnesses. He submitted that the permission deserves to be granted to examine the said witnesses. 2 3. The learned counsel for the first respondent invited my attention to the roznama of the suit and pointed out that the application was filed on the very day on which evidence of the petitioner was closed. He submitted that right from the year 2005 an opportunity was always available to the petitioner to file list of witnesses but the petitioner failed to avail of the said opportunity. He pointed out that an affidavit of the witness at sr.no.14 in the said application was filed way back on 4th April 2006. But thereafter no steps were taken by the petitioner to examine the said witness. He, therefore, submitted that no interference is called for at this stage. The learned counsel appearing for the third respondent supported the petitioner. 4. A perusal of the roznama shows that on 28th April 2005 issues were settled. On the next day i.e. on 7th June 2005 the Trial Court passed an order recording that both the sides have not filed list of witnesses. It appears that thereafter an application was made for addition of parties which was allowed on 16th January 2006. The affidavit of witness no.14 Shamrao Pawar appears to have filed on 4th April 2006. Thereafter the suit did not make any progress as steps were taken for amendment of the plaint and for issuing witness summons to the added defendants. Thereafter number of adjournments were sought by the added defendant for filing written statement. Subsequently an application was made by the added defendant for deletion of his name. There was a further application for amendment of the plaint. 3 5. On 15th October 2007 cross examination of the petitioner-plaintiff was commenced. On 26th September 2007 it appears that the documents produced by the petitioner were exhibited. On 28th January 2008 the cross examination of the petitioner was completed and the suit was adjourned to 12th February 2008. On that date the petitioner applied for an adjournment which was granted by the Trial Court by directing that the petitioner shall keep his witnesses present. The suit was adjourned till 26th February 2008. On the said date, the present application at Exhibit-142 was filed by the petitioner. Without noticing the said application, the learned Trial Judge passed an order on the same day closing the evidence of the petitioner. The application at Exhibit-142 was rejected on the same day i.e. on 26th February 2008 and on 24th March 2008 affidavit in lieu of examination-in-chief of the contesting defendants was filed. 6. Considering the manner in which the suit has made progress, it cannot be said that there was gross delay on the part of the petitioner in applying for witness summons to the witnesses. Now, the petitioner has confined his request for issuing witness summons to only five witnesses. The petitioner will have to take witness summons by hand and serve the said witnesses and will ensure their presence before the Trial Court. 7. The petition deserves to be allowed accordingly. The petitioner will have to pay costs of this petition to the first respondent quantified at Rs. 4 3,000/-. 8. Hence, I pass following order :- A) The impugned order dated 26th February 2008 is quashed and set aside; B) The application at Exhibit-142 is partly allowed to the extent to which the prayer was made for issuing witness summons to witnesses at sr.nos.3,7,11,12 and 14; C) The petitioner shall collect the witness summonses by hand and will ensure that the same are served to the witnesses as expeditiously as possible; D) The petitioner shall pay costs of Rs.3,000/- (Rs.Three thousand only) to the first respondent within six weeks from today; E) As the petitioner has been permitted to examine additional witnesses, it will be open for the first respondent either to recall his witness for further examination in chief or to file further affidavit in lieu of examination-in-chief; F) It is obvious that after the petitioner adduces evidence of the said witnesses and after the first respondent exercises option of filing further 5 affidavit in lieu of examination-in-chief, it will be open for the petitioner to cross examine the first respondent; G) The writ petition is partly allowed in above terms; (A.S.OKA, J.)