Suvarna Ashok Wadekar And Arn v. Mrs. Kiran Baburao Taware
13_WP6708_19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6708 OF 2019 Suvarna Ashok Wadekar and another ...
Petitioners Vs.
Kiran Baburao Taware ...
Respondent Mr. Sangramsinh Yadav for Petitioners.
Mr. Balwant V. Salunkhe for Respondent.
CORAM : BHARATI DANGRE, J.
DATE :
NOVEMBER 22, 2021 P.C. :
1.
The petitioners are the original defendants to the Suit filed by Mrs. Kiran Taware, the second wife of late Baburao Taware who has instituted the Special Civil Suit No.1640 of 2015 before the 4th Joint Civil Judge, Senior Division, Pune for a declaration, partition and separate possession. The defendants to the said Suit are the daughters of late Baburao from his first wife.
The Suit is pending since 2015 and in the written statement filed by the present petitioners they have disputed the marriage of their father with the plaintiff on 22.09.1991.
2.
The defendants in the said Suit (petitioners) filed an application under Order XVI, Rule 1, sub-rules (2) and (3) of the Code of Civil Procedure, 1908 for issuance of summons to the office of the Accountant General, Maharashtra which had processed the pension papers of late Baburao Taware. The said application was rejected by the order on 08.03.2019, which is impugned in the present Petition. 3.
The application came to be rejected on three grounds; first being that the name of the said witness i.e., the Accountant General is not cited in the list of witnesses and it was incumbent upon the party to enlist the said person as witness by referring to the purpose for which summons 1/2
13_WP6708_19.doc are to be issued to him before calling him as a witness. The second reason which the learned trial Judge has cited is that the Suit is directed to be disposed of in a time bound manner by the High Court by its order dated 01.03.2018 and the subsequent order dated 16.01.2019. The third ground which convinced me to reject the application is that the plaintiff is duty bound to discharge the burden before she seeks a declaration and this burden being whether she is legally wedded wife of late Baburao, the trial Court observed that the burden is on the plaintiff to prove the issue whether her marriage with late Baburao is legal and valid. Necessarily, it conveyed that since the defendants are not required to discharge the burden, their application for issuance of summons to bring the pension papers of late Baburao from the office of the Accountant General to establish the marriage is unnecessary. Recording that the application does not satisfy conditions of Order XVI, Rule 1 of the Code of Civil Procedure, 1908, the application is rejected.
4.
Upon perusal of the impugned order, I see no legal infirmity in the same, particularly when by order dated 01.03.2018, by consent of the parties, this Court had directed the trial Court to dispose of the Suit within a period of nine months from the date of passing of the order. This time came to be extended till 31.07.2019 on the request of the learned trial Judge.
5.
In the wake of the aforesaid, the learned trial Judge was perfectly justified in rejecting the frivolous application. The impugned order is, therefore, upheld and the Writ Petition is dismissed. 6.
Needless to state that the learned trial Judge who has been directed to expeditiously dispose of the Suit and the period of which has expired on 31.07.2019 shall now culminate the proceedings on or before 30.04.2022.
(SMT. BHARATI DANGRE, J.) 2/2 Minal Parab