1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4849 OF 2008 1. Siddique Sharif S/o.Shaikh Yasin, Age-64 years, Occu-Business, R/o.Lane No.1 Dhule, Tq. And Dist : Dhule 2. Imran Ahmed Mu.Yunis Azmi Age-48 years, Occu-Business, R/o.Kabir Ganj, Wadjai Road, Dhule, Tq. And Dist : Dhule 3. Mehmood A.Shakur Shaikh, Age-62 years, Occu-Service, R/o.47-A, Ashiyana Colony, Dhule, Tq. And Dist : Dhule 4. Ahmed Hafiz S/o.Ahmed Wahab Ansari, Age-63 years, Occu-Retired, Residence as above. 5. Hafiz Ahmed Haq Ahmed Rehman, Age-63 years, Occu-Business, R/o.Millat Nagar, Dhule, Tq. And Dist : Dhule 6. Hazi Ainoddin Shamshoddin Shaikh, Age-65 years, Occu-Retired, R/o.Muhammadi Nagar, Dhule Tq. And Dist : Dhule 7. Husnoddin S/o.Shamsoddin Shaikh, Age-48 years, Occu-Business, R/o.Datta Mandir, Dhule Tq. And Dist : Dhule 8. Shabbir Isaq Memon, Age-48 years, Occu-Business, R/o.Aksarnagar, Vadjai Road, Dhule, Tq. And Dist : Dhule 9. Shabbir Ahmed Shaikh, Age-48 years, Occu-Nil, 2 R/o.Samarth Colony, Dhule Tq. And Dist : Dhule 10. Muslim Social Welfare Trust, 47-A, Ashiyana Colony, Dhule Tq. And Dist : Dhule PETITIONERS VERSUS 1. Mukhtar Ahmed Noor Nabi, Age-53 years, Occu-Nil, R/o.Tasha Galli, Dhule, Tq. And Dist : Dhule 2. Bashir Ahmed S/o.Ahmed Razzak Ansari, Age-54 years, Occu-Service, R/o. As above. 3. Mohammad Salim Ahmed Razzak, Age-44 years, Occu-Nil, R/o.As above, 4. Shabbir Ahmed A Washid Ansari Age-42 years, Occu-Service, R/o.Shivaji nagar, Dhule, Tq. And Dist : Dhule 5. Akthar Noor Nabi Ansari, Age-42 years, Occu-NIL, R/o.Macchi Bazar, Dhule, Tq. And Dist : Dhule 6. Aliyoddin Kamloddin Shaikh, Age-64 years, Occu-NIL, R/o.Nandi Road, Dhule Tq. And Dist : Dhule 7. Irfanoddin Kabiroddin Shaikh, Age-59 years, Occu-NIL, R/o.Mullawada, Dhule, Tq. And Dist : Dhule RESPONDENTS Mr.C.R.Deshpande, advocate for petitioners Mr.S.S.Mundhe, advocate for respondent no.1 to 3 Respondent no.4 to 7 absent even though duly served. 3 (CORAM : A.V.POTDAR, J.) DATE : 10/06/2009 ORAL JUDGMENT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioners are challenging the order passed below Exh.102 in RCS No.21/2004 on the file of Civil Judge, J.D.Dhule. 2. Rule. 3. Considering the very petty question involved in the writ petition, rule made returnable forthwith, and the writ petition is taken up for final hearing at this stage only. 4. The present writ petitioner/plaintiff before the Trial Court, who is directed by the Court to adduce the evidence, he has taken the summons over witness no.5 ,6 and 7, whose names are disclosed in the application taken for the witness summons. It appears that the witness summons on P.W.No.5 was served, but inspite of due service of summons, he failed to appear before the Trial Court to give the evidence, hence the order of bailable warrant was passed against him. This warrant was also appeared to be executed. Served copy of report of bailiff was shown to me, which shows that even though witness no.6 and 7 were tried to be served through the Bailiff of the Court, during the visit of the bailiff they were not found on the given 4 address as they were out of town. Hence the witness summons returned unserved. By moving application at Exh.102 on the basis of report of bailiff filed at Exh.96, application on relying report of bailiff for re-issue of summons was rejected by the Trial Court vide its order dated 26/03/2008 on the petty ground that inspite of number of opportunities were given, the summonses were not served and returned unserved on the witnesses. On perusal of the record, as well as the order passed by the Trial Court, it appears that the petitioners plaintiffs are sincerely pursuing the matter , but as the witnesses were not found at the given address as they were found not in town during the visit of the bailiff to their residential houses, which is not the fault on the part of petitioners. In the premise, Learned Lower Court is not justified in rejecting the application for re-issuance of summons against the witnesses i.e. witness no.6 and 7. In the premise, the order passed below Exh.102 dated 26/03/2006 required to be quashed and set aside and accordingly this order is quashed and set aside. The Lower Court is hereby directed to allow the application at Exh.102 and to re-issue the summons as prayed for. 5. Rule made absolute as indicated above and the writ petition stands disposed of with no order as to costs. (A.V.POTDAR, J.) khs/wp4849-08 5