Bombay High Court
Shailesh S/O Jethalal Chawda And ... vs Smt. Shobha Wd/O Ramesh Khode Thr. ... on 20 November, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 1666/2017
1] Shailesh S/o Jethalal Chawda,
Aged 52 years, Occ. Business,
R/o Sardar Patel Colony,
Railtoli, Gondia, Tahsil & Dist. Gondia
2] Poonam W/o Shailesh Chawda,
Aged 45 years, Occ. Homemaker,
R/o Sardar Patel Colony,
Railtoli, Gondia, Tahsil & Dist. Gondia
..... PETITIONERS
...V E R S U S...
Smt. Shobha Wd/o Ramesh Khode,
Aged 58 years, Occ. Household Work,
R/o Hanuman Nagar, Plot No. 44,
Nagpur, Tahsil & Dist. Nagpur
through her power of Attorney Holder
Shri Manohar S/o Gulabarao Kukde,
Aged 76 years, Occ. Retired,
R/o Binaki, Anand Nagar, N.I.T.,
Quarter No. 10/01, Nagpur-17
Dist. Nagpur
... RESPONDENT
=====================================
Shri A. N. Vastani, Advocate for the petitioners
Shri V.R. Borkar, Advocate for the respondent
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 20 November
th
,
201
7
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
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2] The original defendants have challenged the order passed
by the trial Court by which the application (Exh. 100) filed by them
praying for issuance of bailable warrant to secure the presence of
witness is rejected.
3] The original defendants applied for issuance of witness
summons to Smt. Saraswatibai Punasao Jamaiwar. This witness
summons was served on the proposed witness, however, she failed to
respond. The defendants then filed the application (Exh. 100) praying
that bailable warrant to secure the presence of Saraswatibai. This
application is rejected by the impugned order. The learned trial Judge
has recorded that the proposed witness is not interested in giving
evidence and it would not be appropriate to compel her to give
evidence.
4] The learned trial Judge has overlooked the provisions of
Order 16 Rule 10, particularly Sub-Rule 3 of the Code of Civil
Procedure which empowers the Court to compel the attendance of
witness by issuing bailable warrant and even non-bailable warrant. In
the present case, the earlier application filed by the defendants to issue
witness summons to the proposed witness is allowed after the Court
was satisfied that the request made on behalf of the defendants to
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summon the proposed witness was accepted. Once having accepted
the request of the defendants and having issued witness summons to
the proposed witness, in my view, now it is not proper for the trial
Court to reject the request made by the defendants by the application
(Exh. 100). The learned trial Judge has failed to exercise the
jurisdiction vested in him and therefore, the following order is required
to be passed:-
O R D E R
1] The impugned order is set aside.
2] The application (Exh. 100) filed by the
defendants is allowed. The learned trial Judge shall
issue bailable warrant to secure the presence of Smt.
Saraswatibai Punasao Jamaiwar for recording her
evidence.
3] Consequently, the order passed by the trial
Court on 14/12/2016, closing the recording of
defendants' witness is also set aside.
4] The trial Court shall proceed in the matter
according to law after securing the presence of Smt.
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Saraswatibai Punasao Jamaiwar for recording her
evidence.
Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
A n s a r i
