1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7698 OF 2003 Shri Drarakainath Dharamdas Shah. ... Petitioner. V/s. Shri Shripatrao Bhavanrao Pantpratinidhi and Ors. ... Respondents. Mr. P.S. Dani for the Petitioner. Mr. S.R. Page for Respondent 1-A-a. Mr. Shailesh Chavan i/b. M/s. Shekhar & Co. for Respondent No.2. CORAM : S.C. DHARMADHIKARI, J. DATED : 19TH JUNE, 2009. P.C. :- The Petitioner is Plaintiff in Regular Civil Suit No.3938 of 2000. This Suit was on the file of the learned Civil Judge, Senior Division, Pune. 2. During the pendency of the same, an application (Exhibit 43) was filed by Defendant Nos.2 to 4 in that Suit who are Respondent Nos. 2 to 4 in the present Petition. 3. It was their case that the issues were framed in the Suit and they wish to lead evidence in respect of Issue No. 2 3. Hence, the Defendant be permitted to lead evidence. This was because the Plaintiff has not taken any steps nor has he filed the affidavit of evidence. 4. This application was made on 17th February 2003 and an order came to be passed thereon on 17th February 2003 itself directing the Defendants to adduce their oral and documentary evidence, if any. 5. The Plaintiff in the Suit applied by Application (Exhibit 52) seeking permission of the Trial Court to issue suit summons to Defendant Nos.1 to 3 afresh and then to allow him to lead the evidence. 6. That application is rejected. Apprehending that not only the suit claim will be dismissed against the unserved Defendant No.1 but it would have adverse effect in so far as the entire claim is concerned, that the Petitioner – Plaintiff has filed this Writ Petition. 7. On this Writ Petition, notice was directed to be issued on 13th November 2003 and further proceedings in the Suit were directed to be stayed. 8. It is contended that the Suit may be old and there may be some lapse on the part of the Plaintiff but the permission to the Defendant to lead evidence even before the Plaintiff has stepped into the box is not provided in 3 law. It is contended by Mr. Dani that the Suit claim still survives as other Defendants were admittedly served. Therefore, the Plaintiff ought to have been given the opportunity provided in law to prove the claim by stepping into witness box first and only thereafter, the Defendants could have entered the same. A strange procedure has been adopted and therefore, the order is vitiated. 9. It is pertinent to note that the old Suit Number was 220 of 1987 and that is how the learned Judge seems to have been influenced while issuing such directions. The pendency of a 1987 Suit without any steps being taken to serve the Writ of Summons has naturally agitated the Trial Court and therefore, the impugned order has been passed. However, the Court below lost sight of the fact that there were Defendant Nos. 1 to 4 in the Suit. The cause title of the Suit itself indicates that Defendant No. 1A is the heir of the deceased Defendant No.1 whereas there are other heirs/Defendants who are shown as A,B and C. Apart from them, there are Defendant Nos. 2 to 4 as well. The application came to be filed by Defendant Nos.2,3 and 4. Therefore, all that the Court could have done was to call upon the Plaintiff to take necessary steps in accordance with law within a particular time frame and in default face the consequences provided in law. Failure of the Plaintiff to serve summons to Defendant Nos.1 to 3 4 at the most could have resulted in dismissal of the Suit as against them. However, Defendant Nos.2 and 3 so also the other Defendant No.4 instead of appearing in the Suit made this Application and sought stepping into the witness box straightway without there being any written statement on their part. All this has resulted in serious prejudice to both sides. The Court below should have avoided such consequences. 10. Be that as if may, now the Plaintiff assures the Court that necessary steps would be taken. In such circumstances, the following order would serve the ends of justice :- 1. The orders below Exhibit 43 and 52 are quashed and set aside. 2. The Plaintiff to take steps to serve the unserved Defendants and complete the process as expeditiously as possible and in any event within two months from today. 3. Such of the Respondents/Defendants who are represented by the Advocates before me and pursuant to their acceptance of the notice of this Petition, waive service of the Writ of Summons 5 and state that they would file the appearance through Advocate or in-person. In any event, they will file the Written Statement in the Suit within the above period. 11. Needless to state that if the Plaintiff commits default in compliance with this order, then, the Trial Court to proceed and dismiss the Suit as against the unserved Defendants. Thereafter, the Suit may be proceeded in accordance with law against such of the Defendants who are appearing before the Trial Court or who have accepted service of the Suit summons. 12. All contentions on merits of all parties to the Suit are kept open. The Petition disposed off accordingly. 13. The Petitioner – Plaintiff to pay costs to Respondent Nos. 1Aa and 2, quantified at Rs.1,500/-. Costs to be paid in the Trial Court within a period of two weeks from today. S.C. DHARMADHIKARI, J.