Shri. Sumeet Ganpat Bachewar vs Shri. Ramesh Vallabh Patel And Ors
2021 Latest Caselaw 2727 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.6677 OF 2019


     Shri. Sumeet Ganpat Bachewar                      ....     Petitioner

             Vs.

     Shri. Ramesh Valllabh Patel & Ors.                ....       Respondents

     Mr. R.M. Hardas i/by Ajay S. Patil for Petitioner
     Mr. Akhil Kupade i/by Manoj Harit & Co. for Respondent No. 2.
     Smt. V.S. Nimbalkar, AGP for Respondent No. 5- State.


                                         Coram : NITIN W. SAMBRE, J.

Date : 10TH FEBRUARY, 2021 P.C.:

1. In Special Darkhast No. 85 of 2008, the Petitioner came to

be summoned as the witness at the behest of objector. There is suit

pending in between the Petitioner and objector in relation to very same

suit property, which is subject matter of decree under execution.

2. In the aforesaid background, the Petitioner moved an

application Exhibit 154 for recalling of witness summons, which is

rejected by the order impugned dated 14 th March, 2019 by the Civil

Judge, Senior Division, Panvel. As such, this petition.

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3. The fact remains that the suit initiated by the Petitioner the

objector is sought to be impleaded as party, which is pending

adjudication. Admittedly both these suits including execution

proceeding are in relation to one and the same property.

4. As far as the decree under execution in Special Darkhast is

concerned, admittedly the Petitioner is not the party to the said decree.

5. The claim in the suit preferred by the Petitioner as against

the authority or in case if the Respondent- Objector is permitted to be

impleaded, it will be proved on the basis of the evidence to be adduced

in the said suit.

6. In the aforesaid backdrop, the fact that the Petitioner will

be required to disclose his evidence/open his cards in an execution

proceedings that too at the behest of the objector is not recognised in

law.

7. If the Petitioner forced to depose in the execution

proceedings, the same might result in spoiling his own case. As such,

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in my opinion, the Court below has committed an error summoning the

Petitioner at the behest of Objector in Darkhast proceedings.

8. Learned counsel for the Petitioner has rightly invited my

attention to the judgment of this Court in the matter of Pirgonda

Hongonda Vs. Vishwanath Ganesh and Ors., reported in 1956 A.I.R.

(Bombay) page 251., wherein the party who has already taken a stand

cannot be forced to depose to the inconsistency of such stand.

9. In that view of the matter, the Writ Petition is allowed.

10. The order impugned dated 14th March, 2019 passed by Civil

Judge, Senior Division, Panvel below Exhibit 154 in Special Darkhast

No. 85 of 2008 is hereby quashed and set aside.

11. Application Exhibit 154 stands allowed.

( NITIN W. SAMBRE, J. )