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Saibai Govind Lavlekar Vs. Balkrishna Pandurang Bane - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 277 of 1923
Judge
Reported inAIR1925Bom368; (1925)27BOMLR471; 87Ind.Cas.702
AppellantSaibai Govind Lavlekar
RespondentBalkrishna Pandurang Bane
Excerpt:
.....xvi, rule 1, of the civil procedure code, 1908, the judge is bound to issues mimmonaes an the application of a party to the suit at any time before the date fixed for the disposal of the suit.;bai kali v. alarakh pirbhai (1890) i.l.r. 15 bom. 86, followed. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz.,..........was tiled so far back as april 2, 1917. for one reason or another the hearing of the suit was not fixed until april 13, 1921. on april 2, 1921, the plaintiff applied that summonses should be issued to the persons mentioned in the list of witnesses filed in the court. the learned judge said :-the application is made at too late stage in this suit, it is not possible to get the summonses served in time as the date fixed is only april 13, 1921. no satisfactory reason is given for calling for the original record of government. the application is rejected with costs on the plaintiff.2. thereafter the suit was heard and dismissed with costs. the appeal met the same fate.3. unfortunately the attention of neither of the learned judges was called to the decision of this court in bai kali v.....
Judgment:

Norman Macleod, Kt., C.J.

1. This suit was tiled so far back as April 2, 1917. For one reason or another the hearing of the suit was not fixed until April 13, 1921. On April 2, 1921, the plaintiff applied that summonses should be issued to the persons mentioned in the list of witnesses filed in the Court. The learned Judge said :-

The application is made at too late stage in this suit, It is not possible to get the summonses served in time as the date fixed is only April 13, 1921. No satisfactory reason is given for calling for the original record of Government. The application is rejected with costs on the plaintiff.

2. Thereafter the suit was heard and dismissed with costs. The appeal met the same fate.

3. Unfortunately the attention of neither of the learned Judges was called to the decision of this Court in Bai Kali v Alarakh Firbhai I.L.R. (1890)15 Bom. 86 where it was held that 'under Section 159 of the Civil , Procedure Code (XIV of 1882) a party to a suit was entitled, as of right, to obtain summonses any time before the date fixed for the disposal of the suit '. Section 159 of the old Code is now Order XVI, Rule 1, of the Code of 1908, and consequently the Judge was bound to issue summonses to the witnesses according to the application of the plaintiff. If then an adjournment had been asked for at the hearing because the witnesses mentioned in the list, tiled on April 2, 1921, did not attend, the Court would have considered whether it should be granted. We must, therefore, set aside the decree of the lower appellate Court and remand the suit to the trial Court for a retrial.

4. All costs to be costs in the cause.


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