1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION CIVIL APPLICATION NO.1575 OF 2009 in FIRST APPEAL NO.2177 OF 2008 Manoj @ Rajaram Uddhav Bachal & Anr. ...Appellants. v. Manohar Sridhar Bachal & Ors. ...Respondents. Mr.Vishwanath G. Talkute, adv. For the Appellants. Mr.Pankaj D. Purway, adv. For the Respondent No.1. Shri P.B.Gujar i/by R.A.Thorat, advs. for the respondent Nos.14,16,18 and 19. CORAM : J.H. BHATIA, J. DATED : 11th September , 2009 P.C. 1 This is an application seeking direction to the trial Court to record evidence of three witnesses, namely, Baburao Kundalik Kumbhar , Popat Raghu Gaikwad and V.B.Hattiwate to prove the alleged will executed by Sridhar, grandfather of the present applicants in the favour of their father Uddhav. Special Civil Suit No.183 of 2001 was filed for partition and separate possession of certain properties wherein the present applicants, who were defendant no.6 and 7 claimed that deceased Sridhar had executed a will in respect of his property. It was also contended that the original will was in possession of the plaintiff and as he was not willing to produce the same, defendant nos.6 and 7 requested the trial Court for permission to lead secondary evidence vide application Exhibit 147. 2 Initially, permission was granted. Later on defendant nos.14 to 20 moved an application to review that order and the order was reviewed and the permission granted earlier was withdrawn. Suit proceeded and the trial Court held that will was not proved. Defendant nos.6 and 7 have filed the first appeal. The appeal is admitted. It is their contention that witnesses are aged more than 75 years and, therefore, recording of their evidence is immediately required. Application is opposed on behalf of the respondents. 2 It appears that plaintiff had through his advocate Mr. V.S.Deshmukh from Nagpur issued notice to the Sarpanch of Gram Panchayat Kusegaon on 30th April, 1992 for taking certain entries about the house property on the basis of a will executed by his father Sridhar. That notice prima-facie reveals that some will was executed by deceased Sridhar and that will was in possession of the plaintiff. As the plaintiff denied that will, defendant no.6 and 7, who are the beneficiaries, wanted to prove execution of the will by leading secondary evidence. In my considered opinion, permission should have been granted. 3 The learned counsel for the respondents contends that no case is made out for passing the order to record evidence under Order 18 Rule16 of the C.P.C. Rule 16 provides that where a witness is about to 3 leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness. The fact that all the witnesses are aged more than 75 years and in view of their age, there is possibility that they may not be available by the time, appeal is decided finally, sufficient cause is made out for recording of their evidence immediately. 3 Therefore, in the interest of justice, application is allowed in terms of prayer clause (a). The trial Court is hereby directed to record evidence of said three witnesses Baburao Kundalik Kumbhar , Popat Raghu Gaikwad and V.B.Hattiwate within 3 months from the date of service of the writ and to submit the report to this Court. Plaintiff and other defendants shall be given due opportunity to cross-examine those witnesses. 4 Application stands disposed off. 5 Parties to appear before the Trial Court on 12th October, 2009. (J.H. BHATIA,J.)