1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3236 OF 2010 (Smt. Chotibai N. Chourasiya vs. Smt. Seema M. Wairagade & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JULY 20, 2010. Heard Shri Deopujari, learned counsel for the petitioner. In partition suit, defendant No. 3 (present petitioner) sought leave to cross examine the plaintiff after the plaintiff was cross examined by defendant No. 1. The trial Court has found that there was no lis between the petitioner and defendant No. 3 and, therefore, has rejected that application. Shri Deopujari, learned counsel has placed reliance upon the judgment of this Court in the case of Mohammed Yasin & Ors. vs. Mohammed Nurani Mohammed & Ors., reported at 2005 (4) Mh. L.J. 568, to contend that the suit is for partition and hence the theory of lis, used by the trial Court is not relevant. According to him, in the said suit, all the parties/ defendants are entitled to share. He states that the plaintiff has given some wrong admissions and hence defendant No. 3 wants to cross examine the plaintiff in relation to those admissions. It is apparent that suit for partition is being opposed by defendant No. 1. If defendant No. 3 wanted 2 to cross examine plaintiff, he should have done it before defendant No. 1 has cross examined. That has not been done. Defendant No. 3 is intending to seek explanation from the plaintiff about the alleged wrongful admissions. Defendant No. 3 has right to enter witness box and point out the correct position and he, therefore, cannot claim any prejudice because of alleged wrongful admissions. After he enters the witness box and brings necessary material on record, the trial Court can evaluate the evidence on record independently. The judgment relied upon does not consider this situation. It only says that the plaintiff has a right to begin and in case the defendant admits facts in written statement, Court can direct such defendant to begin his case but such application has to be filed on the first day of hearing. If there are more defendants than one, those opposing the claim of plaintiff, have a right to urge that the defendants who are admitting the facts should begin and produce evidence in support of issues that plaintiff is bound to prove. The Court has held that all this depends upon the facts of each case. The judgment, therefore, is not of any assistance in present matter. Observations there in para 6 show that petitioner ought to have cross examined first. Writ Petition is, therefore, dismissed. No order as to costs. JUDGE *GS.