ra17.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. REVIEW APPLICATION (CIVIL) NO. 17 OF 2011 In WP/354/2009 SHOBHA MANIKCHAND NAHAR. ... APPLICANT. VERSUS RAMESHWAR SHIVLING GULWE AND ANR. ... RESPONDENTS. ... Advocate for Petitioner(s) : Mr. A.B. Kale, Adv. H/f Mr. Rudrawad S.G. Advocate for Respondent(s) : Mr.A.S. Doke, Adv h/f Mr.V D Salunke for R/1 & 2. ... CORAM : S.S. SHINDE,J. 8th September, 2011. PER COURT: 1. This review application seeks review / recall of the judgment and order dated 13th August, 2009 passed by this Court in Writ Petition No.354/2009. 2. The brief facts leading to filing of this review application are that the applicant had filed writ ra17.11 2 petition No.354/2009 challenging the order dated 18.10.2008 passed by the C.J.J.D., Wadwani at Exh. 106 thereby rejecting the application of the plaintiff - petitioner for calling hand writing expert's report in RCS No.114 of 1999 and further praying that the said application of the petitioner / plaintiff be allowed. 3. By the judgment and order under review, this Court observed in para 8 of the same that the trial Court has clearly recorded that by this time, the defendants have proceeded to lead evidence and at this stage, entertaining application filed by the petitioner is not appropriate, therefore, the stage of filing of application appears to be belated and the trial Court has rightly rejected the application. This Court, therefore, dismissed the writ petition. 4. The learned Counsel for the review applicant would submit that in fact it is the contention of the petitioner - review applicant that the defendants have not opened their evidence in the suit and the plaintiff can be allowed to lead evidence till opening of ra17.11 3 evidence by the defendant. Such arguments are in para 5 of the said judgment under review. The learned Counsel invited my attention to Ground No.VI in the writ petition and submitted that the defendants have yet to step in witness box for leading the evidence. Therefore, the learned Counsel for the applicant / petitioner relying on the grounds taken in the review application submits that this Court may review / recall the judgment and order dated 13th August, 2009. 5. The learned Counsel for the respondents submits that this review application is not maintainable. In support of his submission, he invited my attention to Order 47, Rule 1 of the Code of Civil Procedure and submitted that no any discovery of new and important material has been brought to the notice of this Court or has been pleaded in the review application. The grounds which are taken in the review application are the same grounds and position as was available when the writ petition was heard and ra17.11 4 disposed of. He further submits that the application which was filed by the petitioner herein was at belated stage, three years after filing purshis of closing evidence by the plaintiff. The learned Counsel for respondents also invited my attention to the arguments which were advanced at the time of hearing of the writ petition and relying on those arguments, the Counsel for respondents would submit that the review application deserves to be dismissed. 6. I have given due consideration to the submissions of the parties and also perused the provisions of Order 47, Rule 1 of the Code. In my opinion, the order of which review has been sought, needs to be reviewed. In para 8 of the order, as stated earlier, this Court relied upon the observations of the trial Court that the defendants have proceeded to lead evidence and at that stage, application was filed by the original plaintiff - petitioner herein for expert's evidence. In fact, it is an admitted position that the defendants have not proceeded to lead ra17.11 5 evidence. Even, the said position exists as on today. Therefore, in my view, the judgment and order dated 13th August, 2009deserves to be reviewed / recalled. 7. In that view of the matter, the judgment and order dated 13th August, 2009 passed by this Court in Writ Petition No.354 of 2009 is recalled. Writ Petition No.354/2009 is restored to its original position. Review Application is allowed to above extent and stands disposed of. The Registry is directed to place the Writ Petition No.354/2009 for hearing before the appropriate Bench. Liberty to the parties to move for hearing of the petition before appropriate Bench. [ S.S. SHINDE ] JUDGE. kadam/*