* 1 * WP.5609-2011 28.9.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5609 OF 2011 Farida Aresh Irani & Ors. ......Petitioners V/S. Afzal Abdul Sattar & Ors. ......Respondents * * * * Mr. Venkatesh Dhond, Senior Counsel with Ms. Ferzana Behramkamdin i/by. FZB & Associates, Advocate for the petitioners. Mr. Shailesh Thakkar i/by. M/s. Sailesh Thakkar & Co. Advocate for respondents no.8 to 10. CORAM :- R.G. KETKAR, J. 28 September, 2011. P.C. :- 1. Heard Mr. Dhond, learned Senior Counsel for the petitioners and Mr. Shailesh Thakkar, learned counsel for respondents no.8 to 10 (original defendants no.7(A) to 7(C)). He states that he has already filed vakalatnama on behalf of respondent no.9 and will file vakalatnama on behalf of respondents no.8 and 10 in due course of time. 2. By this petition, the petitioners-original plaintiffs have challenged the judgment and order dated 5th July, 2011 passed by the learned * 2 * WP.5609-2011 28.9.2011 Judge, Court No.11 of Small Causes Court, below Exhibit-128 in R.A.E. Suit No. 809/3046 of 1982. By that order, the learned Judge rejected the application made by the petitioners under Section 163 of the Indian Evidence Act, 1872 (for short the act”). The petitioners shall “ hereinafter be referred as the plaintiffs” and respondents no.8 to 10 “ shall hereinafter be referred as defendants no.7(A) to 7(C)”. “ 3. On behalf of defendants no.7(A) to 7(C), their advocate gave notice under Section 163 of the Act to the plaintiff no.2 on 17th February, 2011 to produce the documents, as more particularly, set out therein. This was replied by the plaintiffs on 1st March, 2011 and the zerox copies of the documents were forwarded to the advocate of defendants no.7(A) to 7(C). He was called upon to take inspection of the original documents either in the chamber of the plaintiff’s advocate or in the Small Causes Court. It was further stated that since defendants no.7(A) to 7(C) invoked the provisions of Section 163 of the Act, they are bound and they were further called upon to give the said documents in evidence in the suit. The plaintiffs thereafter sent another letter on 15th March, 2011 to the advocate for defendants no.7(A) to 7(C) setting out therein that if defendants no.7(A) to 7(C) once again fail to respond to plaintiffs renewed offer of inspection of the said documents, the plaintiffs would then be under no obligation to keep their offer open indefinitely and that * 3 * WP.5609-2011 28.9.2011 in the circumstances, the plaintiffs will invoke the provisions of Section 163 of the Act and called upon defendants no.7(A) to 7(C) to give the said documents in evidence in the suit. This was responded to by defendants no.7(A) to 7(C) on 18th March, 2011 setting out therein that they have not asked for inspection of any documents, while issuing notice dated 17th February, 2011 under Section 163 of the Act. Once again they called upon the plaintiffs to produce the documents as asked for in their letter. 4. It is not in dispute that defendants no.7(A) to 7(C) have received the zerox copies of the documents which was sought by them by giving notice on 17th February, 2011. The plaintiffs thereafter moved the present application under Section 163 of the Act for taking these documents in evidence in conformity with the requirements thereof. This application was opposed by defendants no.7(A) to 7(C) and by the impugned judgment and order dated 5th July, 2011 the learned trial Judge rejected the petitioners application. 5. After hearing the counsel at some length, Mr. Dhond, after taking instructions, makes a statement that on the next date of recording of evidence of the plaintiff’s witness, the said witness will produce the original documents during the course of evidence. Mr. Thakkar, makes a statement, that if during the course of evidence of plaintiff’s witness, he * 4 * WP.5609-2011 28.9.2011 produces the original documents, he will take inspection of those documents. Statements made by the learned counsel appearing for the parties, are accepted. 6. In the light of the above understanding, Mr. Dhond, seeks permission to withdraw the application made by the plaintiffs at Exhibit-128 under Section 163 of the Act. Since, the plaintiffs desire to withdraw the said application, the impugned order passed thereon will not survive. For the aforesaid reason, the petition is disposed off in the following terms :- 1) During the course of evidence of the plaintiffs witness, the said witness shall produce the original documents sought by defendant Nos.7(A) to 7(C) as per notice dated 17th February, 2011. 2) The defendant Nos.7(A) to 7(C) shall take inspection of these documents. 3) The plaintiffs shall therefore call upon said defendant Nos.7(A) to 7(C) to produce these documents in their evidence and the defendant Nos.7(A) to 7(C) shall be bound to give evidence. [R.G. KETKAR, J]