1 WP No.1497/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1497 of 2011 J.M. Constructions ... Petitioner versus (i) Mrs.Antoinette Gomes (ii)Mr.Anthony J. Gomes (iii)Mr.Kalisthapuar J Gomes (iv)Ms.Nonabel J. Gomes (v)Mr.Joseph J. Gomes (vi)Ms.Amy ... Respondents ... Mr. G.S.Godbole i/b Ms.Pallavi Dabholkar for the petitioner Mrs.Ranjana Parikh for respondents. CORAM : D.G. KARNIK, J DATED : 1st March 2011 P.C. 1. This petition is directed against the common order passed below Exhibit 113 and Exhibit 114 filed by the petitioner and Exhibit 152 filed by the respondents. 2. The petitioner is the plaintiff in the suit. He applied to the Court for witness summons by filing two applications by Exhibit 113 2 WP No.1497/11 and 114. Both the applications have been rejected by the court interalia on the ground that plaintiff had not mentioned the names of witnesses in the witness list. 3. Sub-rule(1) of Rule 1 of Order 16 of the Code of Civil Procedure says that on or before such date as the Court may appoint and not later than 15 days on the date when issues are framed, parties shall present in the court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance. Sub-rule (3) of Rule 1 of Order 16 provides that the Court may for reasons to be recorded permit a party to call, whether by summoning through Court or otherwise, any witnesses, other than those whose names appear in the suit referred to in sub-rule (1) if such party shows sufficient cause for omission to mention the name of such witness of the list of witnesses. Though the plaintiff had applied for summoning of the witnesses without furnishing list, he had not mentioned any reason, for omission to mention the witnesses in the list of witnesses as required by sub-rule (3) of Rule 1 of Order 16 of the Code of Civil Procedure. 4. Mr.Godbole, learned counsel for the petitioner submits that there was a technical defect in the applications at Exhibit 113 and 114 of not mentioning of the reason or cause for summoning the witnesses not mentioned in the list of witnesses and on such technical ground, his applications were rejected and writ petition is also likely to fail on the same technical ground. Mr.Godbole on instructions of the proprietor of the petitioner seeks leave to 3 WP No.1497/11 withdraw the applications at Exhibit 113 and Exhibit 114 with liberty to apply afresh after following the procedure/requirement prescribed in sub-rule (3) of Rule 1 of Order 16 of the Code of Civil Procedure. Ms.Parikh, learned counsel for the respondents has no objection for grant of such leave. In my view also, such leave can be granted in view of Order 23 Rule 1 sub-rule(3) of the Code of Civil Procedure. In view of this, petitioner plaintiff is granted leave to withdraw the application at Exhibit 113 and 114 with liberty to apply afresh in respect of the same subject matter. In view of the withdrawal, the impugned order so far as it relates to the rejection of Exhibit 113 and 114 is set aside does not survive. 5. In view of withdrawal of the original applications at Exhibit 113 and 114, the writ petition does not survive and is disposed of. (D.G.KARNIK, J)