1 W.P. No. 5295.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 5295 OF 2009 Kashinathrao S/o Wamanrao Jaibahar, Age 65 years, Occu. Retired teacher, residing at plot No. 59, Shriniketan Colony, Near Rokdiya Hanuman Colony, Aurangabad 431 003. ..PETITIONER VERSUS 1] Smt. Vijayshri W/o Vijaykumar Jaibahar, Age 24 years, Occu. Household, R/o C/o Ramdas Karbhari Borde, residing at Bahaddurpura, Banjara Colony, Aurangabad. 2] Mst. Tejas S/o Vijaykumar Jaibahar Age 5 years, Minor, under guardianship of the respondent No. 1 above, being real mother ..RESPONDENTS ... Shri J.R. Pawar, Advocate h/f Shri Hemant Surve, Advocate for petitioner Mr. M.L. Dharashive, Advocate h/f B.N. Patil Advocate for respondents. ... CORAM :- S.V. GANGAPURWALA JJ. Date :- 24th June, 2011 2 W.P. No. 5295.09 ORAL JUDGMENT: 1. Heard learned counsel for the respective parties. 2. The present petitioner assails the order dated 13-07-2009 passed by the Principal Judge, Family Court, Aurangabad, thereby rejecting the application of the petitioner to adduce the evidence after evidence of RW-1. 3. The present respondent has initiated proceedings against the petitioner for maintenance. The present petitioner examined RW-1, and thereafter filed an application to examine himself. 4. The learned counsel for the petitioner submits that Rule 3-A of Order XVIII of the Code of Civil Procedure relied by the Trial Court is directory in nature, even leave can be granted, subsequently. The Court should have considered the nature of the proceedings. The Court has taken technical approach. 5. The learned counsel for the respondent submits that false reason was mentioned in the application. The petitioner 3 W.P. No. 5295.09 was present when the evidence of RW-1 was recorded thereafter, falsely stating that he was indisposed, no leave was obtained while examining the witness before him. As such, the order has been rightly passed by the Family Court. 6. Order XVIII Rule 3-A of the Code of Civil Procedure requires a party to adduce evidence before the witness. The said provision is directory in nature, even leave can be obtained subsequently. It is fact that the present petitioner who was defendant had not examined himself, he examined RW-1/ witness earlier. The proceedings are regarding the maintenance. The evidence of the present petitioner would be relevant and material. Just because no leave was sought earlier, the right of the petitioner cannot be negatived on the said ground. The Court has to take a liberal approach, more particularly in such matters. There is no impediment to allow the petitioner to adduce his evidence, at the same time the petitioner deserves to pay cost to the present respondent. 7. In the result, the Writ Petition is allowed. The petitioner is permitted to lead evidence on condition that he pays cost of Rs. 1500/- (Rs. One thousand five hundred) to the respondent 4 W.P. No. 5295.09 within four weeks from today. The parties shall appear before the Family Court in the proceedings bearing No. C-30/2006 on the schedule date. The Family Court shall dispose of the proceedings as expeditiously as possible preferably within a period of six months. The parties shall cooperate in the trial of the proceeding. Rule is made absolute in above terms. In view of the disposal of the Writ Petition, the Civil Application No. 6503 of 2011 does not survive, therefore, the Civil Application is disposed of accordingly. [S.V. GANGAPURWALA, J ] SDM* 5295.08WP/240611.