Allowed

Dyaneshwar Kishanrao Chafekar v. Rukmangad Sadashiv Balapure

Bombay HC14 Mar 2013WP/2072/2013

Case brief

AI extract

What is this about?

This judgment quashed an order that barred the plaintiff from examining a specific attesting witness. After a review of earlier orders and considering the petitioner's protracted conduct involving multiple witness petitions, the court allowed the examination on payment of costs.

What did the court decide?

The impugned order is quashed and set aside; the plaintiff is allowed to examine witness Nilkanth Dhondiba Mali on payment of Rs.10,000 costs.

Dyaneshwar Kishanrao Chafekar Vs Rukmangad… — Civil Procedure and Limitation | Bombay HC (2013)

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1 W.P.No.2072/13

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.2072 OF 2013

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Dyaneshwar S/o Kishanrao Chafekar,
Age 31 years, Occ.Labour,
R/o Latur.

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... Petitioner.

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Versus

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Rukmangad S/o Sadashiv Balapure,
Age 37 years, Occ.Service,
R/o Pimpalgaon (Amba),
Tq. and Dist.Latur.

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... Respondent.

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Mr.R.B.Deshmukh, advocate for the Petitioner.
Mr.S.S.Manale, advocate for the Respondent No.1.

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 14.03.2013.

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ORAL JUDGMENT :

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1.Heard.

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2.Rule. Rule returnable forthwith. With

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2 W.P.No.2072/13

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the consent of the parties, the petition is taken
up for final hearing.

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3.An application to examine witness
Nilkanth Dhondiba Mali is rejected.

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4.Learned counsel for petitioner submits
that the witness to be examined by the petitioner
is an attesting witness to the Will-deed and is
required to be examined. The said witness is
relevant. According to the learned counsel, the
trial Court has not properly interpreted the
order passed by this Court. The petitioner does
not want to examine any further witness.

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5.Mr.Manale, learned counsel submits that
the said witness, whom the petitioner now seeks
to examine is not named as a witness earlier.
The petitioner is time and again protracting the
matter. The record would testify this fact. The
Court has rightly passed the order.

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6.With the assistance of the learned
counsel, I have gone through the orders.

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3 W.P.No.2072/13

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7.Earlier also, the right of the
petitioner was forfeited. The Writ Petition
bearing W.P.No.7143/2012, was filed. This Court
allowed the petitioner to examine Padmakar Gyanba
Chafekar as a witness on 18.2.2013 on cost of Rs.
1,000/- (Rupees one thousand).

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8.Thereafter, another Writ Petition was
filed bearing W.P.No.1691/2013, as on 18.2.2013,
the said witness Padmakar was not examined and
thereafter, the trial Court had passed an order,
wherein another witness produced by the
petitioner was not allowed to be examined by the
Court. This Court allowed the Writ Petition and
gave opportunity to the petitioner to examine
another witness Mr.Phad, in place of Mr.Chafekar,
who according to the petitioner was attesting
witness and as Mr.Padmakar did not appear in the
Court, the petitioner wanted to examine Mr.Phad.

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This Court allowed the same. The petitioner
examined Mr.Phad. Thereafter again application

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was given to allow him to examine Mr.Nilkanth
Mali, i.e. the attesting witness. The said
application is rejected with costs. Aggrieved

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4 W.P.No.2072/13

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thereby, the present Writ Petition is filed.

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9.It would appear that the petitioner is
protracting the matter on one count or the other.
Even list of witnesses was not given and on every
date, fresh witness is sought to be examined.
However, considering the nature of the suit, this
Court would not like to curb the evidence of the
petitioner. However, for the conduct of the
petitioner, the petitioner also deserves to be
mulct with costs.

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10.In light of the above, I pass the
following order :

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(a)The impugned order is quashed and set
aside and the plaintiff is allowed to examine
witness Nilkanth Dhondiba Mali, on payment of
cost of Rs.10,000/- (Rupees ten thousand) to be
paid to the present Respondent before the trial
Court on or before 25.3.2013 and on payment of
cost, the petitioner shall examine the said
witness Nilkanth Dhondiba Mali, within one week.
The learned counsel for the petitioner states

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5 W.P.No.2072/13

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that this is the last witness he is examining.

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(b)Rule made absolute accordingly in above

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terms.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp2072.13

Dyaneshwar Kishanrao Chafekar v. Rukmangad Sadashiv Balapure

Case brief

What is this about?

What did the court decide?

Dyaneshwar Kishanrao Chafekar v. Rukmangad Sadashiv Balapure

Case brief

What is this about?

What did the court decide?

What the court decided

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