1 wp1571-11.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 1571 of 2011 Uttam Rohidas Vankhande ..Petitioner v/s. Sujata Uttam Vankhande .. Respondent Mr.Prashant P. Jadhav for the petitioner . Mr.D.S.Sapkale for the respondent CORAM : R.Y.GANOO, J. DATED : 25th April, 2011 P.C. : 1. Petition is admitted. It is made returnable forthwith. 2. Learned Counsel appearing on behalf of the respondent waives service. By consent taken up for hearing. 3. Learned Advocate Mr. Sapkale undertakes to file vakalatnama on behalf of the respondent within two weeks from today. Undertaking is accepted. 2 wp1571-11.sxw 4. The petitioner herein has filed petition for divorce namely Hindu Marriage Petition No.116 of 2009 in the Court of Civil Judge, Senior Division, Sangli. To the said petition, the respondent herein has filed written statement and has also filed counter claim praying for decree for restitution of conjugal rights. In the said Hindu Marriage Petition, the respondent herein filed an application at Exhibit 22. By the said application, the respondent has prayed that the petitioner be directed to deliver to the respondent various articles including certain documents concerning the respondent. The respondent has also prayed for return of the motor cycle, which according to the respondent was given to the petitioner by her. This application was opposed by the present petitioner by filing his reply. The learned Civil Judge, Senior Division, Sangli, by his Order dated 16.9.2010 decided the said application. He has directed the present petitioner to return to the respondent all the documents as well as the motor cycle. It is noticed that this application for return of the articles and documents is decided by the learned Judge without giving any opportunity to any of the parties and in particular to the petitioner to give evidence. Since the respondent is seeking return of articles, it 3 wp1571-11.sxw was necessary for the respondent to file substantive proceeding for return of the said articles. As the respondent had filed an counter claim, it was open for the respondent to pray in the said counter claim for return of the said articles. In my view, an application as has been filed by the respondent cannot be considered as appropriate proceeding as a party against whom the said relief is sought will have to get a chance to put up his case by entering into the witness box. In my view, the impugned order is required to be set aside with liberty to the respondent to file substantive application or to amend the counter claim so that the learned Judge will be able to decide the matter on merits. Hence following order is passed. ORDER i) Order dated 16.9.2010 below Exhibit 12 is set aside. ii) In order to get the articles and documents, as well as the motor cycle listed in the application at Exhibit 22, the respondent will have to file substantive proceeding or amend the counter claim. Liberty to that extent is granted. 4 wp1571-11.sxw iii) If the application for amendment of the counter claim is made or if substantive proceedings are filed, same shall be disposed of on merits. This court has not expressed any views on the points raised in the application. iv) There shall be no order as to costs. [R.Y.GANOO, J.]