1 wp 9639.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9639 OF 2010 1. Ashok S/o Ramrao Mugale, Age : 51 Years, Occu. : Agril., 2. Raoji S/o Ramrao Mugale, Age : 45 Years, Occu. : Agril., 3. Jaidrath S/o Ramrao Mugale, Age : 39 Years, Occu. : Agril., 4. Anurath S/o Ramrao Mugale, Age : 35 Years, Occu. : Agril., 5. Hirkanbai wd/o Ramrao Mugale, Age : 67 Years, Occu. : Agril., All R/o Lambota, Tq. Nilanga, Dist. Latur. .. Petitioners Versus 1. Nabi S/o Basirsab Patel, Age : 31 Years, Occu. : Agril., R/o Dapka, Tq. Nilanga, Dist. Latur. 2. Musa S/o Anis Patel, Age : 25 Years, Occu. : Agril., R/o Dapka, Tq. Nilanga, Dist. Latur. 2 wp 9639.10 3. Ganesh S/o Sahiba Fule, Age : 45 Years, Occu. : Agril., R/o Lambota, Tq. Nilanga, Dist. Latur. 4. Jaishree W/o Ganesh Fule, Age : 40 Years, Occu. : Household, R/o Lambota, Tq. Nilanga, Dist. Latur. 5. Parmeshwar S/o Ganesh Fule, Age : 17 Years, u/g of his natural mother, Jaishree i. e. Respondent No. 4 R/o Lambota, Tq. Nilanga, Dist. Latur. 6. Rajesh S/o Ganesh Fule, Age : 16 Years, u/g of his natural mother, Jaishree i. e. Respondent No. 4 R/o Lambota, Tq. Nilanga, Dist. Latur. .. Respondents Shri Milind Patil, Advocate for Petitioners. Ms. M. S. Thube/Mhase, Advocate for Respondent Nos. 1 & 2. CORAM : S. V. GANGAPURWALA, J. DATE : 23RD JUNE, 2011. ORAL JUDGMENT : . At the outset, Shri Patil, the learned counsel for the 3 wp 9639.10 petitioner seeks leave to delete respondent Nos. 3 to 6 been formal parties. Leave to delete granted at the risk of petitioners. 2. Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 3. The present respondent Nos. 1 and 2 are the original plaintiffs who had filed suit for cancellation of sale deed. During the pendency of the proceedings petitioners moved an application Exhibit 146 for issuance of witness summons who is said to be scribe of the sale deed. The said application is rejected by the learned Trial Judge. The said order is assailed in the present writ petition. 4. Shri Patil, the learned counsel for petitioners submits that the Court has taken a very technical approach while rejecting the said application only because the name of the said witness was not enlisted in the list of witnesses and the application has been rejected. The provisions of Order XVI Rule 1 of the C. P. C. are directory and not mandatory. The said witness is relevant and material for effective adjudication of the dispute. 5. Mrs. Thube, the learned counsel for respondent Nos. 1 and 4 wp 9639.10 2 submits that the application is vague as it can be seen that no reasons are mentioned why the name of the said witness was not given in the list of witnesses. As such, the provisions of Order XVI Rule 1(3) are not complied with. The Trial Judge was right in rejecting the said application. 6. The suit is for cancellation of the sale deed. The legal representatives of the defendant No. 5 who were brought on record on 27.04.2009 filed an application for examining the witness who according to them is the scribe of the said sale deed which is sought to be cancelled. The legal representatives of the defendant No. 5 were brought on record subsequently. The provisions of Order XVI Rule 1 are directory. Such a technical approach could not have been taken. No doubt, the petitioners have also not stated any reasons in the said application as contemplated U/O XVI Rule 1 (3). But taking into account the fact that they are the legal heirs and were brought on record subsequently, I do not feel that just because the reasons were not stated in the application for not enlisting name of the scribe in the list of witness, the petitioners should not be prohibited from examining the scribe. 7. In the light of above, the impugned order is quashed and 5 wp 9639.10 set aside. The application Exhibit 146 in Spl.C.S. No. 12/2005 is allowed. The Rule is accordingly made absolute. No costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/June 11