1 W.P.No.4331/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4331 OF 2011. Mr.Santosh S/o Subhash Mishra, Age 32 years, Occ.Business, Sole proprietor of Shriram Sanitary wares, R/o Plot No.98, N-1, Cidco, Aurangabad. ... Petitioner. Versus The Yasraj Re-rolling Mills Pvt.Ltd., through its director office at Plot No.27, Town Centre behind Indian Airlines Office, Cidco, Aurangabad. ... Respondent. ... Mr.J.N.Singh, advocate for the petitioner. Mr.Vakil, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 21.07.2011. 2 W.P.No.4331/11 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing. 3. The petitioner is the original plaintiff. He had filed a suit for recovery. During pendency of the suit, the petitioner filed application seeking time to adduce evidence. The application came to be rejected. Subsequently, the right of the plaintiff to adduce evidence was forfeited and his application for issuance of witness summons also came to be rejected. Aggrieved thereby, the present petition is filed. 4. Mr.J.N.Singh, learned counsel for the petitioner submits that the Court while rejecting the application has taken a very hyper-technical approach. The petitioner deserves to be given an opportunity to adduce evidence. The learned 3 W.P.No.4331/11 counsel further contends that the plaintiff has examined five (5) witnesses and meanwhile, the plaintiff had moved an application for issue of summons and also warrant to the witness. The said applications were also allowed but somehow the presence could not be secured. Only on the ground that the matter is old one, the trial Court has rejected the application. 5. Mr.Vakil, learned counsel for the Respondent submits that the plaintiff due to his own conduct has invited the orders impugned in the present Writ Petition. Ample opportunity was granted to the petitioner but the same was not availed. Exh.67 for calling witness of the Municipal Corporation, was allowed on 29.6.2007 and thereafter no steps were taken by the plaintiff. The trial Court has properly passed the order. 6. From the record it appears that the plaintiff was given ample opportunity to call for the witness but the evidence was not led. It also appears that the plaintiff has not closed 4 W.P.No.4331/11 his evidence. The procedural law is in aid to sub-serve the cause of substantial justice. The Court could have given one more opportunity to the plaintiff on some terms. Taking into account the dispute involved between the parties and the fact that the Court had already issued the witness summons earlier to the said witness, I am inclined to allow the present Writ Petition by setting aside the orders impugned. However, the petitioner also deserves to be mulct for not exercising due diligence. 7. In the result, the Writ Petition is allowed. The impugned orders are quashed and set aside. Rule is made absolute in terms of prayer clauses (C) and (D) on condition that the petitioner pays costs of Rs.3,000/- (Rupees three thousand) to the Respondent within a period of four (4) weeks from today. The petitioner shall take positive steps to serve the witness summons/warrant and the trial Court shall endeavour to dispose of the 5 W.P.No.4331/11 suit as expeditiously as possible. (S.V.GANGAPURWALA,J.) asp/office/wp4331.10