1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7574 OF 2008 Munawar G. Chenoy and others Petitioners versus Mrs.Bakhtawar B. Chenoy and others Respondents Mr.Chandra Naik for petitioners. Mr.Anil Singh with Atul Singh i/by D.R.Shah for respondent no.1. CORAM : A.S.OKA, J. DATE : 26th February 2010 PC : 1. Heard learned counsel for the petitioners and learned counsel for respondent no.1. It is pointed out that the first petitioner has since expired and, therefore, his name be deleted. Accordingly, permission is granted to delete his name. 2. The petitioners who are some of the defendants filed an application dated 12th December 2007 praying that certain portions of the affidavit in lieu of examination-in-chief of a witness Lt.Colonel K.K.Puri be struck out. By the impugned order, the said application has been rejected. The learned Trial Judge relied upon the decision of this Court in case of Cesar Rego Fernandes and others Vs. Angela Ninette Oliveira Fernandes and others (2008[1]-BCR-270). It holds that there is no power vested in the 2 Court to delete certain portions of an affidavit in lieu of examination-in- chief filed in terms of Rule 4 of Order XVIII of the Code of Civil Procedure, 1908. As far as law on this aspect is concerned, the same is no longer res-intigra in view of judgement of Apex Court in the case of Ameer Trading Corpn. Ltd. Vs. Shapoorji Data Processing Ltd. (AIR-2004- SC-355). The Apex Court had held that if any objection is taken to any statement made in an affidavit in lieu of examination-in-chief, such objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn to the objectionable portion while cross examining him. In view of the decision of Apex Court, if a rival party desires to raise an objection to any portion of the affidavit in lieu of examination-in-chief, the same can be taken only by two modes. The first mode is by raising an objection in writing and the second one is by drawing attention of the witness to the objectionable portion during his cross examination. The objections raised are required to be considered by the Trial Court while finally deciding the suit. At the time of finally deciding the suit if it is found that any portion of the affidavit is not relevant or if it is found that for any portion of the affidavit there is no foundation in the pleadings, the Court can always discard the said portion of the evidence. 3. Faced with this difficulty, the learned counsel for the petitioners submits that the petitioners may be permitted to withdraw the application on which impugned order has been passed and the petitioners may be permitted to file detailed objections in writing to the affidavit in lieu of 3 examination-in-chief of the said witness. The said request is reasonable and deserves to be accepted. Accordingly, the writ petition is disposed of by passing the following order :- A) The impugned order dated 10th October 2008 is quashed and set aside; B) The petitioners are permitted to withdraw the application at Exhibit-17 with a liberty to file detailed objections in writing to the affidavit in lieu of examination-in-chief of PW-2 Lt.Colonol K.K.Puri; C) It is obvious that such objections will be considered by the Trial Court while finally deciding the suit. The objections shall be considered by the Trial Court without being influenced by the impugned order. All contentions of the parties in that behalf are kept open; D) Writ petition is disposed of in above terms. Rule is made partly absolute. No order as to costs. (A.S.OKA, J.)