spb/- 1 wp9878-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 9878 OF 2010 Shri Shivaji Shripati Babar & Others ... Petitioners. V/s. Smt. Housabai Dinkar Babar ... Respondent. ­­­­­ Mr. Prashant Bhavke i/by N.V.Bandiwadekar for the Petitioners. Mr.Amit Borkar for Respondent No.1 ­­­­­ CORAM : D. G. KARNIK, J. DATE : 04th JULY, 2011. P.C. : 1 Heard the learned counsel for the parties. 2 The petitioners are the original defendants and the respondent is the original plaintiff. The respondent filed a suit for partition of the joint family properties originally belonging to Dinkar Balasaheb Babar, who is the husband of the respondent­plaintiff. The petitioners contested the suit inter­alia contending that there was already a partition in the family and that the suit properties bearing Gat No. 174, 421, 433, 333 were already transferred by Dinkar Balasaheb Babar in their name. 3 After recording of the examination­in­chief of the plaintiff was over spb/- 2 wp9878-10.sxw and part of her cross­examination was undertaken, the petitioners produced on record a document, purporting to be the Will of Dinkar Balasaheb Babar and subsequently, made an application for issuing witness summons to the attesting witness. The court initially issued witness summons but subsequently, declined to permit to examine the attesting witness. That order is impugned in this petition. 4 The learned counsel for the petitioners submits that once a witnesses summons was issued, the court could not have declined permission to the petitioners to examine the attesting witnesses to the Will. It appears that the order of issuance of witness summons was mechanically passed. Subsequently, when it was brought to the notice of the court by the respondent that the witness list was not filed and in the pleadings as well as in the evidence there was no mention about the alleged Will, the court declined permission to examine the attesting witness to the alleged Will. It is well settled principle of law that no amount of evidence can be looked into by the court in respect of a fact which is not pleaded. Since it was not the case of the petitioners that they become owners of the suit property under the Will and there was no pleading to that effect in the plaint, the trial court committed no error in refusing permission to examine the attesting witness. spb/- 3 wp9878-10.sxw 5 There is no merit in the petition which is hereby rejected. 6 After this order was pronounced in the open court, counsel for the petitioners prays for stay of the operation of this order and continuation of the ad­interim relief previously granted as he wants to challenge this order. It is directed that the ad­interim order dated 22nd December, 2010 shall remain in force for four more weeks. [D.G. KARNIK, J.]