Dismissed

Omprakash S/O Gyarsilal Agrawal v. Leelabai Wd/O Benishyam Agrawal and Others

Bombay HC8 Feb 2013WP/4249/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a trial court order that permitted a plaintiff to examine a witness via affidavit after the witness had initially settled in another state. The appellate court held that the trial court was justified in allowing the evidence.

What did the court decide?

Writ petition dismissed with no order as to costs.

Omprakash S/O Gyarsilal Agrawal Vs Leelabai Wd/O Benishyam Agrawal and Others — Bombay HC (2013) — LawSathi Research

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wp4249-12.order

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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Writ Petition No. 4249 of 2012

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Omprakash s/o Gyarsilal Agrawal

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Vs.

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Leelabai wd/o Benishyam Agrawal and others.

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Office notes, Office Memoranda of

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Coram, appearances, Court's orders or directions and Registrar's orders.

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Court's or Judge's Orders.

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Mr. Masood Shareef, counsel for petitioner.

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CORAM : SMT. VASANTI A. NAIK, J. DATE : 8 th February, 2013.

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By this petition, the petitioner impugns an order passed by the trial court on 14.2.2012 allowing an application filed by the respondent for permission to lead evidence of P.W.2 Sanjay Sambhariya.

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The petitioner is the original defendant. A suit was instituted by the respondent no.1 against the petitioner for declaration and perpetual mandatory injunction. Initially, the plaintiff wanted to examine one Sanjay Sambhariya as his witness. However, by filing a puris on 22.6.2011, the evidence of Sanjay Sambhariya on affidavit was not pressed. The plaintiff then wanted to examine Pawan Sambhariya. However, since Pawan Sambhariya had settled in Andhra Pradesh permanently, the plaintiff applied for permission to lead evidence of Sanjay Sambhariya, who had initially filed the evidence on affidavit. The trial court allowed the said application by the impugned order.

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On hearing the learned counsel for the petitioner and on a perusal of the impugned order, it appears that the trial court was justified in allowing the application. The trial court rightly held that it was necessary in the interest of

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wp4249-12.order

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justice to permit the plaintiff to examine Sanjay Sambhariya though on an earlier occasion, the plaintiff had not pressed for the affidavit filed by Sanjay Sambhariya on 26.2.2011. The trial court held, and rightly so, that merely because the pursis was filed by the plaintiff on 22.6.2011, the plaintiff could not be precluded from leading the evidence of Sanjay Sambhariya. According to the trial court, no prejudice would have been caused to the petitioner by allowing the said application as the petitioner would have had an opportunity of cross-examining Sanjay Sambhariya. The Court rightly found that since it was not possible for Pawan Sambhariya to enter into the witness box for cross-examination, the plaintiff had rightly applied for examining Sanjay Sambhariya as his witness. The impugned order cannot be faulted with.

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Since there is no merit in the writ petition, the same is dismissed with no order as to costs.

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JUDGE

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Hirekhan

Omprakash S/O Gyarsilal Agrawal v. Leelabai Wd/O Benishyam Agrawal and Others

Case brief

What is this about?

What did the court decide?

Omprakash S/O Gyarsilal Agrawal v. Leelabai Wd/O Benishyam Agrawal and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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