1 W.P.1351.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1351 OF 2010 1. Mrs.Jyotsna Manikal Bhandari, Age :68 Years, Occupation: Business, R/o55/23 Erandavana, Pune-4. 2. Shailesh Jaikumar Bhandari, Age: 42 Years, Occupation: Business, R/0 55/23 Erandavana Pune-4 ..PETITIONERS. [Ori.Deft.No.14 and 16) VERSUS 1. M/s Kesharchand Gulabchand, A Partnership Firm, Carrying on business at Adat Bazar, Ahmednagar through its Partner Shri Mansuklal Chandmal Munot Age : 51 years,Occupation: Business R/o Adat Bazar, Ahmednagar Ori. Plaintiff 2. M/s Chandan Estate, A Partnership Firm, carrying on business at Adat Bazar, Ahmednagar.(Notice to be served on present respondent NO.3) As per order below Exh.261, Amendment carried out Shri V.D. Athare Patil, Advocate, R/o Balikasharam Road, Ahmednagar, A Court Receiver appointed by III joint Civil Judge S.D. Ahmednagar in SCS No. 477/88 dated 06.11.2004 3. Anandram Chandmal Munot,Age: 41 Years, Occupation: Business, R/o Station Road, Ahmednagar. 2 W.P.1351.10 4. Sharad Premraj Munot, Age : 40 Years,Occupation Business R/o Station Road Ahmednagar. 5. Ramesh Nemichand Munot, deceased through L.Rs. 5A Sagar Ramesh Munot, Age: 29 years, Occup. Business, R/o Chandan Estate Nagar, Pune Road, Ahmednagar. 5B Sumit Ramesh Munot,Age:26 years Occup: Business, R/o Chandan Estate Nagar, Pune Road, Ahmednagar. 5C Sau Sweeti Tushar Gundecha, Age24 Years,Occup: Household, R/o Chandan Estate Nagar Pune Road Ahmednagar. 6. Mrs. Mangala Vinod Munot,Age:27 Years,Occup.: Business, R/o Station Road, Ahmednagar. 7. Smt. Vimalbai Vasantlal Bhandari, Deceased through her Lrs. 7A Chandravadan Vasantlal Bhandari, Age: Major Occup: Business, R/o B-49 years, Abhinanshree Society Opp. N.C.L. Pashan Road, Pune. 8. Mrs.Tarabai Jaykumar Bhandari, Age : 43 years Occup.: Business R/o 55/23 Erandvana Pune. 3 W.P.1351.10 9. Mrs. Meena Dilip Munot, Age : 24 years, Occup. Business, R/o Station Road, Ahmednagar. 10. Shri Vikas Shantilal Bhandari, Age : Major Occupation : Business, R/o 1076, Ghokale Nagar Pune-16. 11 Shri Vaibhav Shantilal Bhandari, Deceased through his L.Rs. 11A Pratibha Vaibhav Bhandari, Age : 47 years, Occup: Household, R/o 47-C Abhiman Shri Society, Baner Road Pune-8. 11B Utkarsh Vaibhav Bhandari, Age : 47 years, Occup.: Business, R/o 47-CA Abhiman Shri Society Baner Road, Pune-8. 11C Pragalbha Vaibhav Bhandari, Age: 24 years,Occup.: Business, R/o 47-CA AbhimanShri Society, Baner Road, Pune-8 12. Pradip Vasantlal Gandhi,Age : 34 years, Occup.: Business, R/o M.G.Road, Ahmednagar. 13. Mrs.Kamabai Vasantlal Gandhi, Deceased Through her L.Rs. 13A Vasantlal Kanakmal Gandhi, Age : Major Occup: Business, R/o Akbar Press Society, Kohinoor Bunglow, Behind S.T. Stand Ahmednagar. 4 W.P.1351.10 13B Pradeep Vasantlal Gandhi, Age : Major Occup: Business, R/o Akbar Press Society, Kohinoor Bunglow, Behind S.T. Stand Ahmednagar. 13C Mrs. Jayshree Mohan Munot, Age: Major, Occup: Household, R/o R/o A-52 Abhinanshree Society, Pashan Road, Pune. 14. Kishor Hastimal Munot, Age: 34 years, Occup. Business, R/o Station Road, Ahmednagar. 15. Mrs. Ujwalben Mahindra Shah, Age : Major Occup: Household, R/o 120Nana Peth, Pune-2. 16. Mrs. ChitrabenSharad Shah, Age : Major Occup: Household, R/o 120 Nana Peth, Pune-2. RESPONDENTS Resp. No.2 to 14 are orig. deft. nos 1 to 13 and resp. no.15 to 16 are ori. Defts. nos.16 and 17. Shri.V.J.Dixit Sr.Counsel I/by Shri L.V.Sangit for Petitioners. Shri.S.P.Brahme, for Respondent No.3. CORAM: A.V.NIRGUDE, J. DATE : 23RD MARCH, 2011. JUDGEMENT : 1. Rule. Rule is made returnable forthwith. By consent of the learned counsels for the parties, the petition is taken up for final hearing at the stage of admission. 2. This Writ Petition is filed by original defendant Nos. 14 and 16 of 5 W.P.1351.10 Special Civil Suit No. 477 of 1988, which is pending before Civil Judge Senior Division, Ahmednagar. Respondent No.1 is original plaintiff and other respondents are other defendants. 3. The case of respondent No.1, in short is as under: He stated that respondent No. 2 is a Partnership Firm, of which petitioners and respondent Nos. 3 to 16 were the partners. He said that, respondent No.3 as Holder of Power of Attorney of the partners of the Firm, had received certain amount for and on behalf of the Firm from him and the Firm ultimately failed to repay the amount. He filed the suit for recovery of the amount. Respondent No.3 who was defendant No.2 did not file written statement and it seems that he supported the case of the respondent No.1-Plaintiff. Other respondents opposed the suit saying that what happened between the respondent No. 1 and 3 (Plaintiff and defendant No.2) was not related to the Firm and business of the Firm, if monetary transaction took place in between them did not relate to the Firm. They thereby suggest that a Firm as well as the partners of the Firm are not liable to pay the amount claimed by respondent No.1-plaintiff. 4. In view of this, issues were framed. Respondent No.1 lead his evidence. When turn of respondent No.3 (Defendant No.2) came for recording evidence, he tried to submit his affidavit, as his examination in chief. The rest of the defendants including the petitioners opposed this move. They urged the Court to prevent him from leading any evidence for he had not filed his written statement. (He had filed pursis saying that he supported plaintiff’s case.) In view of this, it is obvious that, he would not be able to lead his evidence independently. 6 W.P.1351.10 5. I am aware that, other defendants including present petitioners have made several allegations against him and respondent No.1- plaintiff, but still he is not able to lead his evidence independently. So, the learned Judge of the trial Court has erred when he allowed the respondent No.3 to lead his evidence. Such order should be set aside. 6. Before concluding this, I must mention that, respondent No.3 has not lost the case as yet. The plaintiff is very much there in the contest to cross-examine the defendants, when their turn would come to lead evidence. Admittedly, some issues would put some burden to prove some facts on them too. They would try to prove that the respondent No.3-partner of the Firm misused their trust etc. They would try to prove that, those transactions were not related to the Firm and its business. These allegations would be made not only against their own partners, the respondent No.3(defendant No.2), but also against respondent No.1(plaintiff). The plaintiff then would have ample opportunity to cross examine the witnesses of the defendants and try to prove them false. It is obviously that he would cover the case of the respondent NO.3 (Defendant No.2). 7. In view of this, Rule is made absolute. The impugned order stands set aside. Sd/- [ A.V.NIRGUDE, J.] MTKok 7 W.P.1351.10