1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1847 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1847 OF 2011 *** 1. Heard Advocate Mr. Korhalkar for Petitioner, Advocate Mr. Shirsath for Respondent No.1. Both learned counsel state that as contesting parties are before this Court service on other Respondents is not essential. 2. Mr. Korhalkar relies upon provisions of Rule 185 of Civil Manual to urge that when defendant Nos.4 and 13 have not filed written statement, they cannot be treated as adversaries and hence application seeking leave to examine them as witnesses of petitioner/ plaintiff ought to have been allowed. His contention is, the relevant provisions are not appropriately looked into and only by relying upon a precedent not applicable in present facts trial Court has recorded a finding that adversary cannot be allowed to be examined as a witness of a 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1847 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. party. 3. Mr. Shirsath supports the impugned order. According to him, in view of arguments advanced and contents of the application as filed, said finding cannot be labeled either as erroneous or perverse. 4. With the assistance of both learned counsel I have perused application at Exhibit-154 and also impugned order dated 21st December, 2010 passed upon it. In application Exhibit-154, the fact of not filing of written statement by Respondent Nos.4 and 13 is not disclosed. The impugned order also does not show that attention of trial Court was invited to any provision of Civil Manual in this respect. In this situation, I find substance in contention of Advocate Mr. Shirsath. 5. However, it cannot be ignored that defendant Nos.4 and 13 have not filed written statement. Need to examine them and the 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1847 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. circumstances in which the summons was sought, therefore, ought to have been pleaded in Application at Exhibit-154 itself. As that has not been, the trial Court could not apply its mind effectively to the facts of the matter before it. 6. Hence, only with a view to enable trial Court to apply its mind effectively and to give petitioner/ plaintiff necessary opportunity in this respect, the petitioner is permitted to move fresh application giving necessary details and if such an application is filed within a period of three weeks from today, the trial Court, after obtaining say of Respondent No.1, shall proceed to decide the same in accordance with law as early as possible and in any case within further period of three weeks thereafter. It shall not be influenced by its earlier order dated 21st December, 2010 in that event. 7. Hence, with above observations and with 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1847 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. above liberty to the petitioner/ plaintiff present writ petition is disposed of. No costs. [B.P.DHARMADHIKARI, J.] Dated:16/03/2011. ans/1847