1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1350 OF 2010 RAMESH KUMAR BHIM ARORA ..PETITIONER V/S MIR JABBAR ALI S/O MIR AHMED ALI AND ORS ..RESPONDENTS ... Shri M.R. Chhallani. Advocate for the petitioner ... CORAM : S.B.DESHMUKH,J. Dated : 23.2.2010 PER COURT :- 1. Petitioner - original defendant in Rent Suit No.30 of 2007, challenges the order passed by the learned II Joint Civil Judge J.D. Aurangabad below Exhibit 30, on 3.11.2009, in this writ petition. 2. Learned counsel for the petitioner submits that the respondents / plaintiffs have filed the said suit, which is pending in the trial Court. Copy of the plaint is on record at Exhibit "A". The suit is for eviction of shop allegedly occupied by the defendant as a tenant. Respondents / plaintiffs on 27.8.2008 filed an affidavit in the trial Court under Order XVIII of Code of Civil Procedure ("CPC"). This was the examination-in-chief. According to learned counsel for the petitioner, after filing this affidavit, in lieu of examination-in-chief, petitioner is 2 entitled to cross examine the witness or the plaintiff. On 20.7.2009, plaintiffs filed an application purported to be under Order XVIII Rule 4 of CPC (Exhibit "D" to this petition) with a prayer that the plaintiffs be allowed to lead further examination-in-chief and it be accepted. This application, after hearing the parties, came to be allowed by the trial Court directing the plaintiffs to pay costs of Rs.350/-. 3. Learned counsel for the petitioner submits that the order is per se illegal. Reason assigned by the learned Judge while passing of the said order is in the interest of justice. This reason is not legal. Direction for payment of costs of Rs.350/- would not suffice the purpose. According to him, in view of the provisions of CPC and Indian Evidence Act, examination-in-chief can be followed by cross examination and said may be followed by re-examination. Beyond this, there is no procedure permitting further examination-in-chief, either on affidavit or orally, by the Court. He further submits that if the Presiding Officer of the Court concerned is of the opinion that there is some ambiguity in the oral evidence, he may call the witness back seeking clarification. Beyond that the Court has no power or jurisdiction. 4. Order XVIII Rule 4 of CPC, by way of amendment, has been made enforceable from 1.7.2002 by CPC (Amendment) Act, 2002. The Central Legislature in response to the call given by the litigant community for curtailing the long span of the civil litigation, introduced various 3 amendments to CPC. These amendments have been brought on statute books to curb the pendency of the civil litigation in the various courts at various levels. 5. Oral examination of the party to the civil litigation or witness is a matter governed by CPC and Indian Evidence Act, 1872. Chapter X of the said Act is titled as "Of the Examination of Witnesses". This chapter starts from Section 135 and ends at Section 166. In the case on hand, we are concerned with sections 138 and 139. I have considered the submissions of the learned counsel for the petitioner and facts which are brought on record. Section 138 of the said Act provides that witness shall be first examined in chief, then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) re-examined. It is further provided that the examination and cross-examination must relate to the relevant facts but the cross examination need not be confined to the facts to which the witness testifies on his examination in chief. Same section also makes a provision for direction of re-examination. Such re- examination shall be directed to the explanation of matters referred to in the cross examination; and if new matter is by submission of the Court, introduced in re-examination. The adverse party may further cross- examine upon that matter. Really speaking we have no concern with Section 139 for the reason that said section refers to cross examination of a person called to produce a document. Factually in the case on hand, it 4 is nobody's case that a person was called for the cross examination or any witness was called to produce the document. (Emphasis supplied). Section 147 of the said Act empowers the Presiding Officer of the Court to compel the witness to give an answer to the question put to him, while recording the evidence in the suit or a proceeding. Section 148 also vests power with the Court to decide whether the question shall be asked and when witness shall be compelled to answer. 6. Order XIII Rule 4 of CPC, brought on statute with effect from 1.7.2002 needs to be read in consonance with sections 138, 139, 143, 148 and 149 of CPC. On reading of these sections harmoniously, in my view, a discretion is vested with the Presiding Officer of the Court for recording oral evidence to permit a specific question to the witness, compelling the witness to give an answer and adopt a procedure for recording of the evidence i.e. permitting the parties / witnesses to produce affidavits in terms of examination in chief, permitting the adversary to cross examine the witness, re examination and so on. No straight jacket formula or world map can be drawn and imposed on the Presiding Officer of the Court to follow the procedure while recording the oral evidence of the parties and their witnesses. 7. Turning to the case on hand, the learned Judge has considered the ground raised by the plaintiff that he is purchaser of the property from quondam owner. He has considered the contention that 5 quondam owner has filed eviction suit against the petitioners. On the date of filing of the affidavit by the plaintiff he did not possess necessary original document and some zerox copies were with him and he has chosen to file claim affidavit and produce those copies on record. The trial Court has also considered the aspect that erstwhile owner withdrew the suit for eviction, handed over the papers to the plaintiff and thereafter, plaintiff filed this application on 20.7.2009 seeking further permission from the Court to lead his oral evidence i.e. examination in chief. In my view, the trial Court has justifiably exercised discretionary jurisdiction enjoyed by the Court in view of the provisions of CPC and the Indian Evidence Act. Order impugned cannot be said to be perverse for turning down by invoking extra ordinary jurisdiction of this Court under the Constitution. 8. This view I am taking has support of the Full Bench decision of this Court in the case of Harish Vithal Kulkarni Vs. Pradeep Mahadev Sabnis [2010 (1) Mh.L.J. 402]. I am in agreement with the view taken by the learned Full Bench. 9. In the result, Writ Petiion stands dismissed in limine. No order as to costs. ( S.B.DESHMUKH, J.) ... akl