1 wp 354.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 354 OF 2009 Shobha D/o Manikchand Nahar, Age : 45 Years, Occu. : Household, R/o Wadwani, Tq. Wadwani, Dist. Beed. .. Petitioner Versus 1. Rameshwar S/o Shivling Gulwe, Age : 50 Years, Occu. : Agril., R/o Dharur, Tq. Dharur, Dist. Beed. 2. Rajmal Panhallal Nahar, Age : 48 Years, Occu. : Agril., R/o Wadwani, Tq. Wadwani, Dist. Beed. .. Respondents Shri A. B. Kale, Advocate for the Petitioner Shri V. D. Salunke, Advocate for Respondents. CORAM : S. V. GANGAPURWALA, J. DATE : 29TH SEPTEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2 wp 354.09 2. The present petitioner is the original plaintiff who has filed suit for specific performance of contract. During pendency of suit the disputed document was referred to hand writing expert. Earlier vide Exhibit 61 the said document was sent to the hand writing expert. The report was received in favour of the defendants. Thereafter, the plaintiff filed an application for again sending the same to the hand writing expert vide Exhibit 86. The report was received. The plaintiff thereafter filed an application to examine the said expert to prove the report. The said application Exhibit 106 is rejected. Aggrieved thereby the present petition is filed. 3. Shri Kale, the learned counsel for the petitioner submits that, the evidence of the defendants has not yet commenced. Only pursis was given by the plaintiff closing her evidence. But thereafter it transpired that the evidence of expert who has already submitted the report is necessary to be examined to prove the said report. The learned counsel contends that the examination of expert would assist the Court and in view of Sec. 45 of the Indian Evidence Act, the evidence of said expert is necessary. 4. Shri Salunke, the learned counsel for respondents submits 3 wp 354.09 that, in fact, the plaintiff had filed a pursis closing her evidence and after lapse of one year thereafter had filed the application Exhibit 106, when the defendants were to start their evidence. Such an application has been rightly rejected by the Trial Court. Even Order 18 Rule 17-A would not permit the plaintiff to adduce the evidence. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Doma Chachere and others Vs. Executive Engineer Gosekhurd reported in 2007 (1) Mh. L. J. 635. 5. Initially this Court had dismissed the writ petition by a speaking order. Thereafter, the petitioner had filed a review petition and the learned Single of this Court (Coram : S. S. Shinde, J) has reviewed the earlier order on the ground that the Court was swayed by the observations made in the impugned order regarding the evidence of defendants has commenced and the Court while deciding the review observed that the evidence of defendants has not commenced and had reviewed its order. 6. No doubt, the plaintiff has filed the pursis closing her evidence and after lapse of about a year had filed an application for examining the expert namely Mr. Parikh to prove the report. The procedural law cannot be construed as mandatory. The 4 wp 354.09 provisions of Order 18 Rule 17-A would not be applicable in the present case. In view of the fact the matter is not in respect of additional evidence, nor it is a case of recall of the witness. But the report of the expert is already on record and the same was in existence when the plaintiff was adducing her evidence. The witness is called to prove the said report. Further Rule 17-A has been deleted in the year 2002. As such, the provisions of Rule 17- A of Order 18 , as it stood then would not be applicable. 7. Moreover, when the petitioner is calling the said expert for examining him to prove the report, the defendants will have every right to cross examine him. 8. In view of the above the impugned order is quashed and set aside and the application Exhibit 106 requesting the Court to call Mr. N. R. Parikh to prove the report is allowed. The defendants will have right to cross examine the said witness. Rule is accordingly made absolute with above said observations. No costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11