Bombay High Court
Mandakini G Shinde And Bhagirathi ... vs Gopal Ganpatrao Shinde (Deleted ... on 2 March, 2021
Bench: Nitin W. Sambre
(18) wp-711-2021.doc
BDP-SPS
Bharat
D.
Pandit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by Bharat D.
Pandit
CIVIL APPELLATE JURISDICTION
Date: 2021.03.05
13:49:13 +0530
WRIT PETITION NO. 711 OF 2021
Mandakini G. Shinde and
Bhagirathi Vithoba Darveshi
(Decd Through LRs)
1(a)Rekha Deepak Shinde and Ors. .....Petitioners.
V/s
Gopal Ganpatrao Shinde
(Deleted since deceased)
Arvind Gopal Shinde and Ors. .....Respondents
----
Mr. Prashant G. Karande for the Petitioners.
Mr. S.R. Paranjape for Respondent No.2.
----
CORAM: NITIN W. SAMBRE, J.
DATE: MARCH 2, 2021
P.C.:-
1] Heard respective Counsels. It is noticed that the order
impugned passed in notice of motion No.456 of 2019 on 4/2/2021
warrants interference for the following reasons.
2] The learned Counsel for Respondent No.2 has invited attention
(18) wp-711-2021.doc
of this Court to the provisions of Order 18 Rule 3A so as to claim that
the order in which the evidence of the parties is to be recorded is
settled by the CPC. According to him, contrary to above, witness
cannot be examined by upsetting the order of recording of evidence of
the witnesses as provided under the aforesaid Rule 3A. Support is
drawn from the observations of this Court in its judgment dated
23/8/2019 in Writ Petition No.3685 of 2019 in Suit No.1767 of 2008
in the matter of Mrs. Anju Toshniwal and Ors. vs. Expat Properties
India Ltd.
3] As far as aforesaid submissions are concerned, it is required to be
noted that order 18 Rule 16 appears to be an exception to Rule 3A of
Order 18 as same provides that the evidence of witness can be
recorded in case if such witness is likely to leave the jurisdiction of the
Court or for other sufficient cause as is shown to the satisfaction of the
Court as to why recording of evidence of such witness is immediately
warranted. The ratio of the judgment of this Court in the matter of
Daulat Jehangir Mehta vs. Miss Piloo Dadabhoy Broacha and others
reported in 2005(1) Mh.L.J. 623 on which reliance is placed by the
learned Counsel for the Petitioner, squarely applies to the facts of the
(18) wp-711-2021.doc
present case. However, ratio of the judgment of this Court in the
matter of Anju Toshniwal, cited supra, relied on by the learned
Counsel for Respondent No.2 is not applicable to the present case.
4] In the notice of motion, it is specifically pleaded by the Petitioner
that witness Usha Katke is of advance age and is suffering from various
ailments. Even doctor's certificates are already produced on record.
Already two parties to the suit have expired because of their advance
age.
5] In the aforesaid backdrop, in my opinion, Trial Court has erred
in failing to understand very scheme of Rule 3A and 16 of Order 18 of
the CPC. In the aforesaid backdrop, the order impugned dated
4/2/2021 passed in Notice of Motion No.456 of 2019 is hereby
quashed and set aside. Notice of Motion No.456 of 2019 stands
allowed.
6] Objection raised by the learned Counsel for Respondent No.2
that evidence of such witness is required to be restricted to the extent
of what has been stated in the examination-in-chief is concerned, at
(18) wp-711-2021.doc
an appropriate stage, Trial Court has every authority to scrutinize the
acceptability of the said evidence.
7] For the reasons stated above, Petition stands allowed in the
aforesaid terms.
( NITIN W. SAMBRE, J. )
