1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7110 OF 2011 AND WRIT PETITION NO.7112 OF 2011 Nashik Municipal Corporation ) Acting through their Commissioner ).....Petitioners versus M/s.Dolchand Kallaji )..... Respondents ---- Mr.V.A.Gangal, Ashok T.Gade, Vindu Pandey & Ms.C.K.Nirmale for the petitioners. ---- CORAM: MRS.MRIDULA BHATKAR, J. DATE: 30th AUGUST, 2011 P.C. 1. In these petitions the order passed by Jt.Civil Judge Senior Division, Nashik dated 10.6.2011 is challenged. The original plaintiffs who are the respondents before this Court have moved the application to examine one Mr. Mahendra Shsh as a witness prior to the examination of the plaintiffs. The said application was allowed by granting post facto permission by the trial Court. The respondents have filed a suit for recovery of money against the present petitioners i.e Nasik Municipal Corporation. The plaintiffs have filed affidavit-in-chief of Shri Mahendra Shah on 18.8.2010 and then 2 moved application on 13.1.2011 seeking permission to record evidence of witness Mahendra Shah prior to the evidence of the plaintiff. In that application plaintiff has given a reason that he is suffering from polio and he is a resident of Mumbai so it is not possible for him to go to Nashik and therefore, evidence of Shri Mahendra Shah be recorded earlier. 2. Learned Counsel for the petitioners objected the order allowing the said application on the ground that the affidavit of Shri Mahendra Shah is not filed through the Counsel and secondly, there is no judicial application of mind while allowing the application. He submits that if the plaintiff is having health problem, a Commissioner can be appointed to record his evidence and the reason given by the trial Court i.e ‘financial loss to the plaintiff’ is not correct. 3. The plaintiff can examine himself later and can adduce the evidence of any other witness prior to his evidence subject to the permission of the Court as per Rule 3A of Order-18 of CPC. Post facto sanction also can be granted under the said Rules. It appears from the order that the Counsel who is on record and appearing for the plaintiff, 3 did not appear before the Court but one other Counsel Mr.Wagh made submissions before the court as he was holding for the Counsel on record. It is true that affidavit-in-chief filed by Shri Mahendra Shah is not presented through the Counsel and his identity is not attested by the Counsel before the Notary. Further whether the plaintiff is going to examine himself or not, is the question raised by the learned Counsel before this Court. However, in the application, the plaintiff has specifically mentioned that he wants to examine himself and therefore, there should not be such apprehension in the mind of the defendant that if the plaintiff would not step into the witness box, then his defence will suffer and prejudice will be caused to him. Moreover, whatever contentions are raised by way of submissions before this court, those may be put up by the Counsel in the cross-examination. I do not find that any prejudice will be caused to the defendants by the order passed by the trial court by allowing the application of the plaintiffs. 4. Hence, both the petitions are dismissed. ( MRS.MRIDULA BHATKAR, J. ) 4