BASWARAJ RAMLING SWAMIversusSHANTVEER RAMLING SWAMI AND OTHERS

2026:BHC-AUG:6460


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                   WRIT PETITION NO.10804 OF 2025

                          Baswaraj Ramling Swami,
                          age 62 years, Occ. Agriculture,
                          R/o at Post Neknal, Tq. Deoni,
                          District Latur.                               Petitioner.

                          Versus

                    1.    Shantveer Ramling Swami,
                          age 88 yrs, Occ. Agriculture.

                    2.    Vaijinath s/o Ramling Swami,
                          age 66 yrs, Occ. Agri.

                    3.    Somnath s/o Ramling Swami,
                          age 56 yrs, Occ. Agri.

                    4.    Ramling s/o Rachotti Swami,
                          age 85 yrs, Occ. Agri.

                          All R/o at Post Neknal,
                          Tq. Deoni, District Latur.            Respondents.
                                                              (orig defendants)

                                                   ...
                          Advocate for Petitioner : Mr. Ajinkya Reddy
                          Respondent nos.1 to 4 Served – absent.
                                                   ...

                                        CORAM : S. G. CHAPALGAONKAR, J.
                                        Dated      : 2nd February, 2026

                    ORDER :-

                    1.    The petitioner takes exception to the order dated

                    3.4.2025 passed by the learned Civil Judge, J.D. Deoni, District

                    Latur, below Exhibit-43 in Regular Civil Suit No.78 of 2021,
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whereby petitioner's application to recall and re-examine the

witness is rejected.


2.    The petitioner is original plaintiff in Regular Civil Suit

No.78 of 2021 which is pending before the Civil Judge Junior

Division, Deoni. The suit is instituted for relief of declaration of

ownership on the basis of will notarized on 27.12.2020 and

purported to be executed by petitioner's mother namely

Revammabai Swami.


3.    The respondents/defendants contested the suit by filing

written statement. Plaintiff in his endeavor to prove the will

examined Mr. Unmesh Manohar Hibare (Advocate Notary) as

witness no.2. The witness was cross-examined on behalf of

defendants.    Immediately, thereafter, petitioner realized that

Notary Register, which was brought by witness and referred in

Examination-in-chief is not exhibited or relevant extract is not

made part of the evidence. Therefore, he sought permission to

re-examine PW-2 to bring on record extract of notary register.

Trial Court rejected said application observing that permitting

re-examination of PW 2 would amount to filling up lacuna in

the evidence. The application does not pass the rigors of

section 138 of the Evidence Act.
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4.    Mr. Ajinkya Reddy, learned advocate appearing for

petitioner would submit that petitioner/plaintiff has based

claim on will, which has been admitted in evidence and given

Exhibit-34. On 27.12.2020 will was notarized in the register of

Advocate Notary. Advocate-Notary PW-2 was present in the

Court alongwith Notary Register. He identified document

registered at serial no.215 of 2020 in Notary Register.

However, extract of aforesaid entry was not placed on record

or given exhibit number which is essential to prove execution

of notarized will.


5.    Mr. Reddy, would point out that application seeking

permission to re-examine the witness was immediately made

after cross-examination was over, which could have been

allowed.    In support of his contentions, he relies upon

observations of the Hon’ble Supreme Court in case of Rammi

alias Rameshwar Vs. State of M.P. reported in AIR 1999

Supreme Court 3544 and of this Court in case of Anand

Rangrao Ingle and another Vs. Govind Rangrao Ingle and

others reported in 2012 (5) Mh.L.J. 955.


6.    Although, notice for final disposal of this writ petition

was duly served upon respondents, none appeared.
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7.    Apparently, plaintiff’s claim is based on the so-called Will

executed by his mother. It is admitted in evidence and marked

as Exhibit-34. The document has been notarized before PW-2

Advocate Notary. Petitioner examined him before Court as PW-

2. The perusal of Examination-in-Chief of PW-2 suggests that

witness was present before the Court alongwith original notary

register having entry of will at serial no.215 of 2020. In this

background, a mere formality of placing on record either

original register or extract thereof was remained. Looking to

the nature of dispute between parties, extract of register

maintained by Notary would be relevant and essential.

However, there appears inadvertent mistake on the part of

advocate appearing for petitioner. Immediately, on realizing

mistake, an application was tendered seeking permission for

re-examination to extent of bringing register entry or extract of

the register.


8.    Learned Trial Judge was of the view that granting

permission to re-examine would be a license to fill up the

lacuna. It is difficult to countenance with the view taken by

the Trial Court. When parties are litigating over civil rights,

they should be given a full opportunity to establish their case.
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The procedure is handmade of justice and cannot be an

impediment in the path of justice.          Unless it is shown that

serious prejudice would be caused to other side or some right

accrued in favour of the other side is likely to be prejudiced,

reasonable request made by the party during course of the

evidence can be considered. The language of section 138 of

the Act cannot be read as fetter for re-examination of the

witness, if some technical error has occurred during course of

chief-examination and correction thereof is sought. Even, by

reading chief-examination of PW-2, it can be observed that

there are sufficient avernments, by which production of extract

of notary register can be allowed and document can be given

exhibit. Therefore, for the limited purpose of presentation of

extract of notary register, Court could have allowed re-

examination or further examination of PW-2.              This Court in

case of Anand Ingle (supra) in paragraph nos.8 and 9 observed

thus :-

          “7.   In the light of the judgment of the Supreme Court in
                the case of K.K. Velusamy (supra) this Court feels it
                necessary that the petitioner should get one more
                opportunity to put forth his case before the trial court
                and it is left open to the trial court to decide the said
                application in the light of the Judgment of the
                Supreme Court, cited supra. Therefore, the
                impugned order is set aside. Application below
                Exh.41 is restored to its original file. The petitioners
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              and the respondents will appear before the trial court
              and advance their arguments on merits. It is also left
              open for the concerned Court to decide the
              application afresh on merits, however, taking into
              consideration the exposition of the Supreme Court in
              the case of K.K. Velusamy (supra).

         8.   Rule is made absolute accordingly. The petition is
              disposed of in the terms, indicated above.

         9.   The trial court is directed to hear the said application
              afresh within a month from today and render its
              decision thereon. It is made clear that the trial court
              shall not be influenced by any of the observations
              made in this order.”

9.    Even inherent powers of the civil court can be invoked in

appropriate   cases    to    avoid      injustice   on   account     of

technicalities. In result, the impugned order is quashed being

unsustainable in law.       Writ petition is allowed in terms of

prayer clause “A’ & “B” and disposed of.



                                        ( S. G. CHAPALGAONKAR )
                                                   Judge.
                                    …

AAA