1 wp5579.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5579 OF 2011 Sayeeda Begum w/o Salahuddin, Age: 55 years, Occ: Household., R/o. Kotwalpura, Near House of Gulabchand Kaliwal, Aurangabd. ...PETITIONER VERSUS Shaikh Tajuddin s/o Amiruddin, Age: 60 years, Occ: Service, R/o. Hilal Colony, Opp.Babu's House, Aurangabad & Ors. ...RESPONDENTS ... Mr. Ajit D. Kasliwal, Advocate for the petitioner. ... CORAM: S.S. SHINDE, J. DATE : 4TH AUGUST, 2011 PER COURT : Heard learned Counsel appearing for the petitioner. 2. Learned Counsel appearing for the petitioner submits that, on 28-06-2011 the petitioner herein moved an application Exhibit-186 2 wp5579.11 for production of the documents i.e. original registered sale deed executed by deceased Amiruddin in favour of original defendant No.1 dated 22-12-1986. The certified copy of the said sale deed was already placed on record. The trial Court allowed the production of the said sale deed. Learned Counsel for the petitioner submits that, the application filed by the petitioner at Exhibit-187, seeking permission for examining the witness of the registered sale deed dated 22-12-1986, has been erroneously rejected by the trial Court. According to him, once the production of document is allowed, in the interest of justice and to set at rest the entire controversy in the matter, the trial Court should have allowed the application at Exhibit-187 for examination of the witnesses. It is further submitted that, the plaintiff himself has asked declaration of the said sale deed and therefore, in all fairness, the application filed by the petitioner ought to have been allowed by the trial Court. 3 wp5579.11 . According to learned Counsel for the petitioner, no sooner the original sale deed was traced out, the application for production of the same on record was filed and also application at Exhibit-187 for examining the witnesses was filed and merely because the application was moved after lapse of some time, is no ground to reject the application filed by the petitioner at Exhibit-187. Learned Counsel for the petitioner invited my attention to the grounds taken in the petition and submitted that, the impugned order in this petition required to be set aside, by allowing the application of the petitioner at Exhibit-187. 3. I have given due consideration to the submissions of the learned Counsel for the petitioner and I am of the opinion that, the order impugned in this petition needs no interference. The trial Court has given cogent reason in the impugned order. It is noted in Para-3 of the 4 wp5579.11 impugned order that the evidence of defendant is already closed before 10 to 12 years back and finally arguments on behalf of plaintiff is already being adduced and completed. The matter was fixed for arguments of defendant and at that stage, such application at Exhibit-187 was filed. The trial Court further taken a note of the fact that, the copy of the sale deed was already placed on record and therefore, nothing prevented the defendant to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872. . The trial Court has taken a note in Para-8 of the impugned order that, all of a sudden after completion of argument of plaintiff the application is filed alongwith the original sale deed and defendant No. 2 has sought permission to examine the witnesses on the sale deed and to prove the original sale deed. In fact, such application is filed at the stage when the plaintiff's arguments are completed and the defendant is suppose to argue the matter. The 5 wp5579.11 trial Court in Para-11 has discussed the provisions of Order XVI Rule 1 of the Code of Civil Procedure and concluded that, any party who deserves to take the summonses shall present in the Court, a list of witnesses on the date fixed by the Court and not latter on 15 days after the date in which the issues are settled. Further, any party who desire for obtaining summons for attaining witnesses shall file in the Court, an application with the purpose for which witness is proposed to be summoned, such application has to be filed before the Court within 5 days. The trial Court has further discussed the Amendment to the Code of Civil Procedure in 1977. In Para-13, the trial Court has observed that defendant No.2 has filed his closing pursis at Exhibit-149 and her trial was concluded in the year 1999, since then the defendant No.2 was aware of the fact that she has not proved the original sale deed before the Court and further she has not taken any pains for proving certified copy of sale deed on the event of non finding of original sale deed. Therefore, 6 wp5579.11 the trial Court concluded that, it is not proper to allow the application at the stage of arguments. 4. On independent scrutiny, I am of the opinion that the view taken by the trial Court is a possible view. On plain reading of Order XVI Rule 1 of the Code of Civil Procedure, it is abundantly clear that list of witnesses has to be submitted on the date fixed by the Court and not later than 15 days after the date in which the issues are settled. 5. It is admitted position in this case that the matter is placed for arguments and the plaintiff's Advocate has concluded the arguments. Even defendant No. 2 i.e. petitioner herein has filed his evidence closing pursis at Exhibit-149 in the year 1999. 6. In the light of discussion hereinabove, in my opinion, no case is made out to entertain 7 wp5579.11 this petition. Hence, writ petition stands rejected. . However, it is made clear that any observations made in the impugned judgment and order or in this order may not come in the way of the petitioner while arguing the matter finally before the concerned Court. [S.S. SHINDE, J.] sut/AUG11