1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 403 OF 2010 Sou. Baijabai Balkrishna Chache. .. Petitioner Vs Shri Bhaskar Akaram Chache & Ors. .. Respondents -- Shri T.S. Ingale for the Petitioner. Shri P.K. Hushing for the Respondents. -- CORAM : A.S.OKA, J. DATE : 6TH APRIL, 2010 P.C: . Heard learned counsel appearing for the parties. Notice for final disposal was already issued. The Petitioner is the original Plaintiff and the Respondents are the Defendants. The suit is for specific performance of the alleged agreement for sale executed by the 2nd to 4th Respondents in favour of the Petitioner. The Petitioner made an application at Exhibit-85 for issuing witness summons to one Jaywant Shamrao Patil who is stated to be a teacher of 4th Respondent for the purposes of identifying the alleged handwriting of the 4th Respondent in the letters allegedly exerted by the said Respondent. An application at Exhibit-86 was made by the Petitioner for issuing witness summons to a medical officer for production of certain record. An application was made at Exhibit-90 praying that the 4th Respondent be directed to remain present 2 before the Court and give a specimen of her handwriting. A prayer was made that after the specimen handwriting is given by the 4th Respondent, the same may be compared with the documents at Exhibits 3/19 to 3/19. By an order dated 15th September, 2009, the applications at Exhibits – 85 and 86 were rejected. By an order dated 5th November, 2009, the application at Exhibit-90 was rejected. The learned counsel appearing for the Petitioner on instructions states that the Petitioner is confining the challenge in this Writ Petition only to the order by which the application at Exhibit-85 is rejected. He states that the Petitioner may be permitted to refer to and rely upon the admitted handwriting of the 4th Respondent in the Vakalatnama filed in the Trial Court. 2. The learned counsel appearing for the Respondents opposed the Petition. He pointed out that there is no explanation as to why the application at Exhibit-85 was made at the fag end of trial. He submitted that the stage of recording of the evidence of the Petitioner is over long back and now at this stage without there being any explanation for delay in the application, a permission cannot be granted to the Petitioner to examine the witness. 3. I have carefully considered the submissions. The suit is for specific performance of an agreement for sale allegedly made by the 2nd to 4th Respondents in favour of the Petitioner. The case is that there is an oral agreement for sale. The Petitioner is relying upon certain letters allegedly 3 sent by the 4th Respondent which are produced by the Petitioner at Exhibits- 3/16 to 3/19. The application at Exhibit-85 has been made for issuing witness summons to one Jaywant S. Patil who was allegedly a teacher of the 4th Respondent with a view to identify the handwriting in the alleged letters. It appears that the 4th Respondent has denied the letters which are sought to be relied upon by the Petitioner. Therefore, an opportunity deserves to be granted to the Petitioner to examine the witness as prayed for in the application at Exhibit-85. However, the Petitioner will have to take witness summons by hand and ensure that the witness remains present before the Court on the date fixed by the Court. The learned counsel appearing for the Petitioner submitted that the Petitioner may be permitted to rely upon the admitted handwriting of the 4th Respondent on the Vakalatnama filed by her Advocate. Whether the alleged letters are really sent by the 4th Respondent is an issue which will have to be decided by the Trial Court at the time of hearing of the suit and, therefore, all the questions will have to be kept open. 4. Hence, I pass the following order. (a) The Petition in so far as the challenge to the orders passed below Exhibits-86 and 90 is concerned, is dismissed as not pressed. (b) The impugned order dated 15th September, 2009 is 4 quashed and set aside to the extent to which the application at Exhibit-85 was rejected. (c) The application at Exhibit -85 is hereby allowed. The witness summons issued by the Trial Court shall be taken by the Petitioner by hand and it will be the responsibility of the Petitioner to serve the witness summons to the concerned witness before the returnable date. (d) The Writ Petition is disposed of in above terms by keeping all the contentions open. (A.S.OKA, J)