1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7078 OF 2009 Harishchandra Gangaram Thakur .. Petitioner versus Yashoda Bharat Paringe & Anr. .. Respondents Mr.S.V.Gavand for the petitioner. Mr.D.N.Gandhali for respondent No.1. Mr.S.D.Rayrikar, A.G.P for respondent No.2. CORAM : A.S.OKA, J. DATE : 25th February 2010. P.C.: . Heard learned counsel appearing for the petitioner, the learned counsel appearing for the 1st respondent and learned A.G.P for the 2nd respondent. Notice for final disposal was issued on 22nd September 2009. The challenge in this writ petition is to the order dated 5th March 2009 passed by the trial Court by which application made by the petitioner (original plaintiff) at Exhibit 64 has been rejected. 2. In the application at Exhibit 64 a prayer was made by the petitioner for issuing witness summons to alleged attesting witnesses to the Will dated 23rd January 1998. The said application was opposed by the 1st respondent (1st defendant) by contending that one of the two witnesses has been already examined and the name of the other witness Anant Nathuram Kadu does not 2 appear in the list of witnesses. The learned trial Judge rejected the application by holding that the application has been filed to fill in the lacuna in the evidence in asmuch as one of two attesting witnesses Ramesh Thakur has been already examined. 3. The learned counsel appearing for the petitioner pointed out that when the evidence of the attesting witness Ramesh Thakur was recorded, the original Will was not on record and only a certified copy of the alleged Will was on record. He pointed out that thereafter the original Will was permitted to be produced by the trial Court. He pointed out that it is necessary to issue witness summons to the attesting witnesses so that the original Will can be shown to them in evidence. On instructions he states that the petitioner is confining his prayer in Exhibit 64 to the extent of examining Anant Nathuram Kadu as witness. The learned counsel appearing for the 1st respondent opposed the prayer by submitting that by this method the petitioner wants to fill in the lacuna in the evidence of other attesting witness Ramesh Thakur and no interference is therefore called for. The learned A.G.P also supported the impugned order. 4. I have considered the submissions. When the attesting witness Ramesh Thakur was examined earlier, admittedly the original Will was not on record of the suit and what was on record was a certified copy of the Will. Subsequently, the original Will was allowed to be produced. It is true that witness Ramesh Thakur has been already examined. However, the petitioner is not pressing for issuing summons to the said witness again and the petitioner wants to examine the other 3 alleged attesting witness. To that extent permission ought to have been granted by the trial Court as the original Will has been subsequently brought on record. 5. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 5th March 2009 is quashed and set aside. (b) The application at Exhibit 64 is partly allowed and the trial Court is directed to issue witness summons to one Mr.Anant Nathuram Kadu. (c) The writ petition is partly allowed in above terms. (A.S.OKA,J)