HIGH COUKT OP CHHATTISGARH AT BILASPOR SB : HON'BLE SHRI JUSTICE PRITINKER DIWAKAR .W.P, (Art.227} N0. 1779/2Q08 PBTITIQNER Oritdnal Defeadaat No.l Or^iaal PlaiattEfs Origuial Defendaats No. 2 to4. Arvitid Kuiaar Dighraskar, aged about 52 years, S/o. Shri Krisbaa Ji Dighraskar R/o. Near Gaaiyan Bada, Tilak Nagar, Bflaspur. Present Address Dy. Collector Central Recprd Section, Through. Coixunissioner Laad Record Seeretariat Bhawan, C.G. Gowt Raipur (CG) yersus 1. Sudhir Kuraar Digluaskar, aged about 64 years, S/o. Krishaa Rao Dighraskar, R/o. Chadda Badi Nehru Nagar, Bflaspur (CG) 2. Suresh Kumar Dighraskar, a.g/sS. about 62 years, S/o. Knshna Rao Dighraskar, R/o. Shanti. N^ar, Nehru Nagar Ward No. 3, Tah. & Distt. Bilaspur (CG) 3, Aail Kumar Dighraskar, aged about 55 years, S/o. Krishna Rao Dighiaskar, Chief Maaager, Bank of Baroda, R/o. Braach Audheri East, Mmubai-72 4. Srat. Suhas Dabadgh.BV, aged aboTit 58 years, W/o. Siuresh Dabadghav Balaghat (MP) Prein Nagar, MIG .10 Near Gayatrt Temple, Balagfaat (MP) 5. Snit. Maxigala Kher, aged about 57 years, Wd./o. AiulKber,.House No. 5S7, Baak of Baroda Gotony, Khatiwala Taak, Indore (MP) ®M ^ KiSS ^s^t :)'S'5| h-S w.1 6. Sint. Madhuri Telang, aged about 50 years, W/o. Chaadra Shekhar T'elang, Advocate, Rail ToU, Gondiya Maharastra PETITIOS UHDER ART3CLB 2;27 OF THE CONSTITUTION OF INDIA ^.. Shri Utkarsh Verma, counsel for tlie petitioner. Shri Upendra Bharat, couasel for fhe respondents No. 1 to3. Shri Anup Majumdar, counsel for respondent No.5. (01.Q4.2009S The petitioner/defendaat No.l, in the present writ petition has assaUed fhe order datcd 12.3.2008, passed by the IXth Additional District Judge (FTC) Bflaspur, whereby the appMcation filed by defendaats No. 1 to 3 under Order 26 RiUe 4 read with Section 151 of the code of Civil PTocedure has been disniissed. In a siiit filed by the plamtiffs/Tespondents No. 1 to 3 for partition aad separate possessioa, ttte evidence on behalf of fhe plamtiff was' closed somewhere on 08.10.2007. Thereafter, three comTnon witnesses have also been exammed on behalf of the defendants No. 1 to 3. Subsequenfly, after exainination of fhese fhree wituesses, an application was filed by fhe defendauts No. 1 to 3 iiader Order 26 Rule 4 of the Code of Civil Proceditre for the examination of defendant No. 2' and 3 on coinmission. In this appUcation, it has been subiaitted by tbese three defendaats tbat defendant No.2 is a resident of Balaghat (MP), defendant No.3 is a resident oflndore (MF) and it has atso been subinitted that defendant No. 2 & 3 are old ladies, if-y. ^- defendant No.2 is suJBering fioin spondilitis whereas defeadant No.3 lias uadei^one operatiou aad iLaabte to move. It lias not been disputed by fhe parties that no affidavit, whatsoever, has been filed iu support of tfais application. Vide impugned order dated 12.03.2008, learaed Court toelow has rejected fhe appUcation filed by the defendants No. 1 to 3 whereia the Court below ttas elaborately discussed the CQnduct of fhese three defendauts aad has come to fhe conclusion ttiat despite several opportuiuties earlier graated;no witnesses have beeii produced by fhexu. Leamed Court below has also taken a note of the fact that tbe appUcation ffled under Order 26 Rule 4 of the Code 6f Civil Procdiu-e is not supported by aa afBdavit. Leamed couasel for the petitioner/defendaiit No.l Shri Verma, subiuts that ttie provisions of Order 26 Rule 4 of fhe Code of Civfl Procedure has nbt been foUowed by the Court below and it was mandatoiy upon the Court to aUow such appUcation especiaUy when one of ffae proposed witnesses is residiag beyond 500 kms. Anofher contentidn of fh.e coiinsel for the petitioner is that ftie parameters of decidiag the applicatioa uuder Order 17 Rule 3 of fhe Code of Civil Procedure for adjoununent and application under Order 26 Rule 4 oftheCode ofCivil Procedure are dififereat. According to him, whfle deciding the appljication, leamed Court below had not ass%ned auy justified reason and fherefore, fhe order deserves to be set aside. Oa the ofher hand, Shri Upendra Bharat, leamed counsel for the respondcnts No. 1 to 3, subinits fhat sufficient opportuirily was graated to the defeadaats for ; ^ ••"*ll ^. '\- producing their witnesses aad despite this, they have failed to produce fheir witnesses. Therefore, the Court below has nghtly rejected fhe application of the defendants No. 1 to 3. It has also been submitted by him that fhe defendants No. 1 to 3 iii tbeir application have stated that they waat to exaTnine the defendant No. 2 & 3 however, the present wnt petition has been filed by defendaat No.l aad not by those persons who want to exainiae fheinselves as witnesses. According to him, this itself shows fhat the present writ petition is not genuine aad has been simply fUed just to prolong the inatter. A separate reply has been filed by respondent No.4 (defendaat No.2) fhrough the counsel Shri Anup Majunidar categoricafly submittiag that she does not waat her to be examined ia the case on coiumission. It is uadisputed fact that the case is at the verge of finaUty aud the same is pendiag since last about three years. I have perused the order impugned aad fhe rival contention of fhe parties. I do not find any force ia fhe argument advaaced by fhie counsel for the petitioner because while deciding the application, the Court below has vei3r elaborately dealt wifh aB fbe facts and ciFcuiastanees of ftie case and has also considered the conduct of ffae petitioner wliereby the petitioner wants to Hager on the niatter. Th.t^contention of SIui Bharat, learued couiisel for the respondents No. l to 3 is also to be given note. His further contention is also to be seen wbere the person who wauts to examine fhemselves iu fhe Court is not coming up m !i,i.-.ill1 £ ia tfae writ petition and fhe defendant No. 1 has filed fhe writ petition. Even otherwise also, the scope ofinterfeience ia awrit petition under Article 227 of the Constitution of India cannot be enlarged so inuch where such petition Eke the present one can be entertauied. Law ia fhis respect is weU settled and I do not find aay trregularily or fllegality iu the order impugned. Accordiagly, the petition is disudssed. Sd/- pritinker Diwakar Y, Judge —— yiiguna Jf.- lill'-'t