1 wp4205.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4205 OF 2009 M/s. Murlidhar Pittumal Partnership firm at Dhule, Jamnalal Bajaj Road, Dhule, Through its partner Dayaldas s/o Murlidhar Relan, Age: 74 years, Occ: Business. & Ors. ...PETITIONERS VERSUS B.C. Mehta (Died), through L.Rs. 1. Surajbai Bhavarlal Mehta (Died) 2. Prakash Bhavarlal Mehta, Age: 64 years, Occ: Advocate R/o. 1864, Agra Road, Dhule & Ors. ...RESPONDENTS ... Mr. C.R. Deshpande, Advocate for the petitioners. Mr. S.P. Shah, Advocate for respondent Nos.2 to 4. ... CORAM: S.S. SHINDE, J. DATE : 20TH APRIL, 2011 PER COURT : This petition is directed against the order dated 18-04-2009 passed by the Civil Judge, 2 wp4205.09 Junior Division, Dhule on an application Exhibit-144, thereby rejecting the prayer of the petitioners to issue summons to the witness Nos.6 to 9 and 11 and 14. 2. The learned Counsel for the petitioners invited my attention to the pleadings in the petition, impugned order and also documents annexed alongwith the petition, and submitted that, the provisions under Order 16 Rule 1 of the Code of the Civil Procedure are procedural and there is no any mandatory provision prohibiting entertaining an application filed subsequently for issuance of the summons. According to the learned Counsel for the petitioners, for proper adjudication of the suit pending between the parties, it is necessary to issue summons to the witness Nos. 6 to 9 and 11 and 14 in the list of witnesses. According to the learned Counsel for the petitioners, no reasons are assigned by the trial Court while rejecting the application praying for issuance of the summons to the witness 3 wp4205.09 Nos. 6 to 9 and 11 and 14. The learned Counsel also invited my attention to the report of the Bailiff and contended that, in respect of some of the witnesses, bailiff report mentions that those witnesses are not residing on the said address. According to the learned Counsel for the petitioners, even the plaintiff was not sure about the death of the witness Nos. 6 to 8 and 14. The petitioners subsequently came to know about the death of witness Nos. 6 to 8 and 14 and therefore, application was filed to call the witnesses who are occupying the premises. In respect of witness No.11 the son in law and daughter of original tenant who are in possession of the documents in respect of said premises are required to be summoned. According to the learned Counsel for the petitioners, so far witness No.11 is concerned, he vacated the premises and as a result, the plaintiff got back possession of the said premises 4 wp4205.09 which was in possession of witness No.11. Therefore, it was necessary for proper adjudication of the suit, to issue summons to Bhupendra Mahendralal Shah, who is son in law of Dayabhai Lallubhai Shah, who is no more. Therefore, the learned Counsel for the petitioners would submit that this petition may be allowed. 3. On the other hand, learned Counsel appearing for the respondents submitted that as per provisions of Order 16 Rule 1 of the Code of Civil Procedure, a list of witnesses is required to be filed not later than 15 days from the date of framing the issues. The suit is pending from 1992. The petitioner was aware about the fact that the witness Nos. 6 to 8 and 14 are no more. Therefore, now it is not open for the petitioners at belated stage to file such application. The learned Counsel invited my attention to the reply filed by the respondents before the trial Court and contended that, in reply itself it was made clear that witness Nos. 6 to 8 and 14 are no more 5 wp4205.09 and other witnesses also are dead. However, such application was entertained by the trial Court. Therefore, the learned Counsel for the respondents would submit that this petition is devoid of merits and same is liable to be dismissed. 4. I have given due consideration to the submissions advanced by the learned Counsel for the respective parties. 5. It is not in dispute that already the petitioners have filed list of witnesses as contemplated under Order 16 Rule 1 of the Code of the Civil Procedure. It is the contention of the Counsel for the petitioners that the witness Nos. 6 to 9, 11 and 14 are necessary for proper adjudication of the suit. In my opinion, though the provisions of Order 16 Rule 1 of the Code of the Civil Procedure are procedural in nature, in the facts of this case, as it is clear from the order of the trial Court that suit is pending from 1992, entertaining application at belated stage 6 wp4205.09 that too when the petitioners themselves are not aware whether the witness Nos. 6 to 8 and 14 are alive or dead, the trial Court was right in rejecting the application for issuance of the summons to those witnesses. 6. So far witness No. 11 is concerned, he is no more. The prayer of the petitioners is that witness summons should be issued to Bhupendra Mahendralal Shah who is son in law of the original witness No.11 whose name is not mentioned in the list of witnesses which was submitted by the petitioners. Even it is not the case of the petitioners that, the premises which were occupied by Dayabhai Lallubhai Shah are now in possession of Bhupendra Mahendralal Shah. Therefore, in my opinion, issuing witness summons to such witness would not be proper exercise and therefore, the trial Court has rightly rejected the prayer of the petitioners. 7. Therefore, taking overall view of the 7 wp4205.09 matter, in my opinion, in exercise of writ jurisdiction, it is not possible to entertain any prayer in this petition. Therefore, the petition stands rejected. [S.S. SHINDE, J.] sut/Apr11