1 wp2393/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2393 OF 2011 Shivananad s/o Kashinath Wakade, Age 37 years, Occupation Agriculture, Resident of Badur, Taluka Nilanga, District Latur Petitioner V E R S U S Kalappa s/o Basteerthappa Wakade (died) through legal representative Bandwaabai w/o Baburao Birajdar, Age 44 years, Occupation Household, Resident of Badur, Taluka Nilanga, District Latur Respondent Shri S.V. Dhandole, Advocate, holding for Shri Vijay G Sakolkar, Advocate for the petitioner Shri H.V. Patil, Advocate for the respondent - sole CORAM : A.V. NIRGUDE, J. DATED : 5th August, 2011 ORAL JUDGMENT : 1. Rule. Rule is returnable forthwith. By consent of the parties, writ petition is taken up for final hearing. 2. This writ petition filed under Articles 226 and 227 of Constitution of India is challenging the order dated 15th March, 2011, passed by the Civil Judge, Senior Division, Nilanga, on Exh.126, in Special Civil Suit No. 05 of 2008. The petitioner is the defendant in that suit. It is the case of the original plaintiff Kalappa that the petitioner played fraud and got a sale-deed executed from him in respect of his property. He sought cancellation of the sale-deed. The petitioner opposed the suit by filing written statement. Issues were framed and the parties led their evidence. Thereafter, Kalappa died. Kalappa is replaced now by his daughter Bandwabai. After her taking over charge of the case, she amended the plaint. She has now come with a case that before Kalappa died, he has effected partition of the suit property 2 wp2393/11 and she has acquired independent interest in it etc. Due to these developments, the learned Judge of the trial Court found it necessary to frame certain new issues and new issues were framed. The parties were called upon to lead evidence. Thereafter, the petitioner filed the present applications, in which he sought a direction to recall the witnesses of the plaintiff. The learned Judge of the trial Court rejected it. The question is, whether such an order is proper ? 3. The main question in the case is, whether the petitioner / defendant played fraud when the original respondent / plaintiff Kalappa executed the sale-deed ? If this is answered in favour of the petitioner / defendant, the suit would be dismissed, and therefore, if Kalappa before his death had made certain alienation of the suit property pending the suit, it would be hit by lis pendence and the petitioner should not be overtly sensitive about it. It seems, out of over anxiousness, the present application is moved. The application was misconceived and the order passed on it cannot be interfered into. In view of this, the writ petition stands dismissed. Rule is discharged. ( A.V. NIRGUDE, J. ) SRM/wp/2393/11/5/8/11