1 7.WP-2824-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 7 WRIT PETITION NO. 2824 OF 2024 BHAGIRATHIBAI ZAMSING PATIL SINCE DECEASED THR LRS SHASHIKALA DHARAMSING PAWAR THR LRS AND OTHERS VERSUS THE STATE OF MAHARASHTRA THROUGH THE COLLECTOR AND OTHERS ….. Advocate for the Petitioner : Mr. Dharurkar Chaitanya V AGP for Respondent No.1 : Mrs. R.R.Tandale Advocate for Respondent No.2 : Mr. Dhananjay B.Thoke Advocate for Respondent No.3 : Mr. U.S.Patil … CORAM : SHAILESH P. BRAHME, J. DATE : 17th FEBRUARY 2025 PER COURT : 1. Heard both sides finally. 2. Petitioners are challenging order dated 05.02.2024 below Exh.325 passed by learned Civil Judge, Senior Division, Chalisgaon in Special Civil Suit No. 09 of 2018, rejecting application for issuance of witness summons to Mr. Suryakant Wakalkar (valuer) and Police Inspector, Chalisgaon city police station. 3. Learned counsel Mr. Dharurkar appearing for the petitioners maintains his statement that he does not press application for witness summons to the extent of police inspector. His concession has already been recorded by order dated 13.03.2024. Therefore, I am dealing 2025:BHC-AUG:4808 2 7.WP-2824-2024.doc with his application to the extent of government approved private valuer Mr.Wakalkar. 4. Previously, a court commissioner was appointed for examining Mr. Wakalkar as he was unable to attend the court by order dated 28.07.2022 below Exh.232 . However, the witness did not respond due to his various ailments and commission could not be executed. Again by present application Exh.325, petitioners requested the trial court to issue witness summons. It is informed across the bar that Mr. Wakalkar is physically fit and is in a position to attend the court for deposition. 5. Learned counsel for the petitioners has tendered on record the letter dated 27.02.2024 addressed by Mr.Wakalkar to the Civil Judge, Senior Division, Chalisgaon. The same is taken on record and marked as Exh.X. It is submitted that his evidence is necessary to decide the real controversy in the matter. Petitioners have filed suit for mandatory injunction as the subject matter which was in their possession was demolished illegally by the respondent no.2. 6. Learned counsel Mr.Thoke appearing for respondent no.2 and Mr.Patil appearing for respondent no.3 would support the observations of learned trial Judge in the impugned order that petitioner is protracting the proceedings. His side is still not concluded. The suit is of 2012 and the evidence of defendants is yet to commence. They further submit that if the suit is made time bound 3 7.WP-2824-2024.doc and certain conditions are imposed on the petitioners, they have no serious objections for calling the witness in question. 7. Admittedly, the suit was filed in the year 2012. Petitioners’ side for recording evidence is not over. Petitioners already examined number of witnesses. Previously also attempt was made to examine Mr. Wakalkar but due to his health issues, the evidence could not be recorded. I find that the manner in which petitioners are proceeding with the suit is objectionable. The observations and findings in paragraph no.7 of the impugned judgment, cannot be faulted with. I would have rejected the present petition but due to assurance given by the learned counsel for the petitioner, I propose to extend one opportunity to the petitioners. 8. Learned counsel Mr. Dharurkar assures that Mr. Wakalar has shown readiness and if the witness summons is issued, he would be examined within a short-span. He further assures that the petitioners would not protract the proceedings any further and would conclude their sides. It is further assured that they would co-operate for final disposal of the suit and have no objection if it is expedited. It is further informed by learned counsel for petitioners that he intends to examine further two witnesses. 9. I trust and believe the assurances given by the petitioners and their counsels. In the interest of justice and fairness, I propose to extend an opportunity to the petitioners to examine the witness in question. Learned counsel for the petitioners assures that no sooner 4 7.WP-2824-2024.doc than summons is issued by the trial court, he would make every endeavour to keep the witness present on the next date. 10. Under these circumstances, I think it appropriate to allow the petition. I therefore pass following order : ORDER a) Writ petition is allowed partly. b) Impugned judgment and order dated 05.02.2024 below Exhibit-325 passed by learned Civil Judge Senior Division, Chalisgaon in Special Civil Suit No. 09 of 2018 is quashed and set-aside. c) The application at Exhibit-325 filed by the petitioners stands allowed to the extent of witness Mr. Suryakant Wakalkar only. d) The witness summons shall be issued to Mr.Wakalkar within a period of two weeks which shall be returnable after two weeks thereafter. e) The petitioners shall co-operate with the expeditious disposal of the suit which shall be decided within five (05) months from today. [ SHAILESH P. BRAHME, J.] vsj..