RAJIYABANO MOHAMMADH RAMJAN Vs. RAIZWAN AHMED MOHAMMADH RAMJAN

JUDGEMENT

(1.) Heard Mr. Deshmukh, learned Counsel for petitioners at length.

(2.) By this Petition under Article 227 of the Constitution of India, petitioners have challenged the order dtd. 4/2/2016 below exhibit-66 as also the order dtd. 25/2/2016 below exhibit-70 passed by the learned Civil Judge, Senior Division, Malegaon in Civil Miscellaneous Application No. 35 of 2013. By order dtd. 4/2/2016, the learned trial Judge rejected application exhibit-66 made by the petitioners for adjourning the proceedings on the ground that the witness proposed to be examined by the petitioners went out of station for some personal chores and consequently, the said witness was not in a position to attend the Court. The learned trial Judge rejected that application on the ground that the application is vague and no name of witness proposed to be examined is mentioned. The learned Advocate appearing for the petitioners clarified that he wanted to examine attesting witness on Will. The learned trial Judge observed that the proceedings are for heirship certificate, which is of summary nature and there is no question of issue of proof of Will. Examination of attesting witness on Will is not necessary. By order dtd. 25/2/2016, the learned trial Judge rejected application exhibit-70 made by the petitioners for examining Mohd. Ibrahim, who is the brother of deceased Haji Ramzan and attesting witness of the Gift Deed dtd. 2/10/2011 The learned trial Judge rejected the application on the ground that the proceedings of heirship certificate are of summary nature and issue of proof of Gift Deed is not before the Court. Respondent herein is nowhere concerned with the Gift Deed dtd. 2/10/2011 The learned trial Judge was, therefore, of the view that there was no necessity of examining witness to the Gift Deed by the petitioners herein.

(3.) Mr. Deshmukh strenuously contented that Mr. Mohd. Ibrahim is the brother of deceased Haji Ramzan. He is attesting witness to the Gift Deed dtd. 2/10/2011 On 4/2/2016, said Ibrahim could not attend the Court as he was out of Station. In view of the circumstances beyond the control of the petitioners, they could not ensure presence of the said witness. He further submitted that in terms of Order XVI, Rule 1-A of the Code of Civil Procedure, 1908 (for short 'C.P.C '), any part to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents. He, therefore, submitted that the learned trial Judge ought to have allowed the examination of the said witness.