1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8987 OF 2004 Rambhau Nana Dalvi since deceased by his legal heirs and representatives ...Petitioners vs. Mrs.Smita P.Haldankar & Ors. ...Respondents Mr.V.S.Gokhale for the petitioners None for the respondents CORAM :A.S.OKA,J. DATE : MAY 3, 2010 P.C.: 1 On 3rd November 2004, notice for final disposal at admission stage has been issued. The first respondent being the original plaintiff is the only contesting party. None appears for the first respondent. Interim notice was taken out by the petitioners who are the legal representatives of the 3rd defendant. The said interim notice was taken out for grant of permission to examine one Hemavand Behram Irani whose affidavit in lieu of examination-in-chief was tendered along with the notice. The notice was required to be taken out as the evidence of the petitioner was closed on the earlier date. By the impugned order dated 12th November 2004, notice was discharged and the suit was fixed for arguments. 2 I have heard the learned counsel for the petitioners. I have perused the annexures. An affidavit was filed by the first petitioner in which it is stated that on 15th September 2004, the said witness was not present when the trial Court closed the evidence. Notice was taken out on 29th September 2004 along with which which an affidavit in lieu of examination-in-chief of the 2 said witness was tendered. Perusal of the impugned order of the trial Court shows that a very hyper-technical view has been taken and the prayer has been rejected. It appears that the evidence of the petitioners was ordered to be closed on 15th September 2004, and on 29th September 2004, the present notice was taken out. The trial Court ought to have granted one opportunity to the petitioners to examine their witness. 3 Hence, petition must succeed. Hence, I pass the following order : Impugned order dated 12th October 2004 is quashed and set aside and the interim notice no.4554 of 2004 is made absolute by permitting the petitioner to examine Mr.Hemavand Behram Irani as a witness. There will be no order as to costs. JUDGE