1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2859 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2859 OF 2010 *** 1. Heard Advocate Shri S.S.Deshmukh for Petitioner/plaintiffs, Advocate Shri B.R.Sontakke for Respondent Nos.2 and 3. There is no appearance for other Respondents though they are served with notice for final disposal. 2. By impugned order, petitioner/ plaintiffs are restrained from examining plaintiff No.3 as their witness, by trial Court. Advocate Deshmukh contends that mere possibility of filling in lacunae or apprehension thereof is not sufficient to deprive plaintiff No.3 of his right to lead evidence. He has invited attention to application Exhibit-64 moved by Respondents (defendants before trial Court) seeking orders to prohibit plaintiff No.3 from entering witness box, and impugned order. Advocate Shri Sontakke states that Plaintiff 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2859 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. No.1 mother entered witness box and deposed on behalf of all. She has given some vital admissions and to get over those vital admissions, plaintiff No.3 is introduced. He states that there is no list of witnesses tendered on record and when all plaintiffs are being represented by same counsel, effort is obviously to fill in lacunae. 3. Being party to the suit it is obvious that right of plaintiff No.3 to lead evidence cannot be taken away. Admissions given by one of the plaintiffs, during his cross examination, cannot be the reason to deny opportunity to other plaintiffs to enter witness box. Trial Court has overlooked the basic right of a party to lead evidence in the matter. Mere possibility or apprehension that lacunae may be filled in, is not sufficient. The admissions given by plaintiff No.1 mother are already on record and can be used by defendants while cross 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2859 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. examining plaintiff No.3. 4. Had the earlier arrangement of tendering evidence of examination in chief orally continued, it is apparent that such a application could not have been moved by the defendants. 5. Impugned order dated 11th February, 2010 passed below Exhibit-64 is, therefore, unsustainable. Same is accordingly quashed and set aside. Plaintiff No.3 is permitted to enter witness box. The defendants are free to cross examine him in accordance with law. Rule made absolute accordingly. No costs. 6. Considering the fact that the petitioner No.1 mother is senior citizen trial Court is directed to attempt to decide the suit at the earliest. [B.P.DHARMADHIKARI, J.] Dated:14/02/2011. ans/2859