Naresh Pandharinath Chaudhari vs Laxman Vyankat Patil
2016 Latest Caselaw 3833 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                          
                         WRIT PETITION NO.6853 OF 2014




                                                 
     Naresh Pandharinath Chaudhari                                  PETITIONER
     Age - 42 years, Occ - Agriculture, Business
     R/o Manraj Park, Jalgaon,
     Taluka and District - Jalgaon




                                                
              VERSUS

     Laxman Vyankar Patil                                        RESPONDENT




                                        
     Age - 83 years, Occ - Agriculture
     R/o At and Post Avhane,
                             
     Taluka and District - Jalgaon

                                     .......

Mr. Madhav M. Bhokrikar, Advocate for the petitioner

Mr. S. D. Bhosale h/f Mr. S. P. Brahme, Advocate for respondent .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 14th JULY, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally with consent.

2. On the either side there are various submissions on facts.

Learned advocate for the petitioner refers to sections 30, 31 and

32 of the Civil Procedure Code and contends that in spite of

issuing summons twice, the court has accepted request of the

person who is vital witness as far as plaintiff's case is concerned,

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without calling upon the petitioner and under the circumstances,

his application at Exhibit-101 ought to have been properly

appreciated and decided. Learned advocate further, in addition to

aforesaid provisions of civil procedure code, refers quite a few

citations namely "Ramdeo Prasad V/s State" reported in AIR 1951

Allahabad 415; "Jagpat and others V/s State" reported in 1957 Allahabd 764;

"Bhupathiraju Suryanarayanaraju V/s Bantupalli Appanna and Another"

reported in AIR 1959 AP 645 and "Uchhabkanwar and Another V/s Legal

Representatives of Ramswaroop and Others" reported in AIR 1995 Rajasthan

209.

3. According to learned advocate for the petitioner, once the

court makes up its mind to summon a witness, he should always

be compelled to attend the court to give evidence, taking all

measures, as contemplated under section 32 and further it is not

the discretion of the court to take any one of the measures and

may refuse to take further measures.

4. Learned advocate for the respondent, however, resists

aforesaid request stating that once a person had been before the

court and requested the court not to force upon him to give

evidence and the request having been accepted, rejection of

application Exhibit-101, may not be faulted with.

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5. Learned advocate for the respondent further submits that

"no evidence" order has been passed against the plaintiff and the

matter has proceeded further and in the circumstances, no

indulgence be given to the petitioner.

6. Perusal of the impugned order shows that aforesaid

provisions as well as decisions being relied upon in the writ

petition were not brought to the notice of the court nor the other

side appears to have an opportunity to deal with the same. As

such, in the interest of justice, application Exhibit-101 can be

heard afresh by the trial court by giving opportunity to the

parties concerned in respect of the application. For said purpose,

the impugned order is set aside. In view of aforesaid, "no

evidence" order also would stand set aside.

7. Writ petition accordingly stands allowed. Rule is made

absolute in aforesaid terms. Civil application No.9913 of 2016 as

such, stands disposed of.

[SUNIL P. DESHMUKH, J.]

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