-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.222 of 2008 Pravin Himatlal Meghani since deceased through his heirs and legal representatives 1. Smt.Bharati Pravin Meghani and others ..Petitioners vs. 1. Anwar Usman Moulvi and ors. ..Respondents Shri Jimmy Mehta i/b Shri H.G.Bhambhani for petitioners. Shri J.S.Kini for respondent no.1. Smt.J.P.Thakkar for respondent no.2. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 22nd January, 2008 22nd January, 2008 22nd January, 2008 P.C. P.C. P.C. 1. The petitioners who are original plaintiffs in R.A.D. and E.Suit No.1155/1905 of 2002 have impugned the order of the Appellate Bench of Court of Small Causes, Mumbai dated 11th December, 2007 quashing and setting aside the order of the Trial Court dated 26th November, 2007. 2. It appears that the applicant/defendant no.2 filed the Revision Application being Revision Application No.345 of 2007 challenging the order of the Trial Court dated 26th November, 2007 refusing to issue the witness summons to summon -2- 21 witnesses on behalf of the defendants in the suit. 3. The suit is filed by the present petitioners for declaration of their tenancy rights. There is no dispute about the fact that the suit is being heard and is presently part heard. 4. The witnesses on behalf of the defendants having not been earlier mentioned with their names and other details, it appears that the Trial Court passed the order for closure of evidence of the defendants on 24th October, 2007. The application was made to set aside this order which came to be rejected. Thereafter the present application was made and the Trial Court passed the subject order. The Revisional Court has interfered and allowed the revision application directing that the applicant/original defendant no.2 is permitted to examine two witnesses. 5. After this matter was argued for some time before me, I enquired of Shri Kini who appears for original defendant no.2 Anwar Usman Moulvi. He has invited my attention to the application filed on 20th November, 2007 in the Trial Court -3- enlisting therein the names of 21 witnesses. 6. The learned Advocate appearing in support of the petitioners contended that when the matter was partly heard, there is no warrant for interfering with the order of the Trial Court, more so, when it is not demonstrated that discretion is exercised arbitrarily or capriciously by the Trial Court. Merely because some list is handed in when the matter is being heard partly and now has reached the stage of arguments does not mean that the permission to summon witnesses must be granted. 7. Shri Kini has sought to support the impugned order. 8. After I have perused the impugned order with the assistance of the learned Advocate appearing for the original plaintiffs and defendant no.2, ultimately, it is agreed that from the list of witnesses submitted by original defendant no.2, he shall only be allowed to examine the witnesses at Sr.Nos.5,11, 14, 15, 17, 20 and 21. These witnesses will have to remain present in the order that they are mentioned in the application. In other words, the witness at -4- Sr.No.5 Afzal Iqbal Khan shall step into the witness box first. It would be for the original defendant no.2 to decide as to whether he wishes to examine the witness in chief orally. However, considering the mandate of the amended Code of Civil Procedure, it would be desirable if the affidavits in lieu of examination in chief is handed in of the witnesses at Sr.Nos.5, 11 and 14 in the first instance to the original plaintiffs. Upon their affidavits being handed in within a period of 10 days from today, the said witnesses shall be cross examined by the original plaintiffs seriatim from 7th February, 2008. Needless to state that rest of the witnesses as mentioned hereinabove would also have to be examined in the same manner. In other words their affidavits in lieu of examination inchief would have been handed in atleast a week in advance to enable the plaintiffs to cross examine the witnesses. The Trial Judge is directed to complete recording of evidence of these witnesses as expeditiously as possible and in any event complete the same by 4th March, 2008. 9. Needless to state that if the affidavits in lieu of examination in chief are not handed over -5- or the witness/es does not turn up for cross examination on the date and time fixed by the Trial Court, the original defendant no.2 shall forfeit his right to examine the said witness. The other witness/es shall be allowed to be examined by the Trial Court in the manner indicated above. The petition is disposed of in the above terms with no order as to costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)