:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 7115 OF 2005 PETITION NO. 7115 OF 2005 PETITION NO. 7115 OF 2005 Smt. Safiyabegum Mohammadso Momin and others .... Petitioners versus Shripati Vasudev Urankar & ors. ... Respondents. Shri S.S. Patwardhan for the petitioners Shri M.R.Suryawanshi for respondents. CORAM; CORAM; CORAM; P.V. KAKADE, J. P.V. KAKADE, J. P.V. KAKADE, J. DATED; DATED; DATED; FEBRUARY 08, 2006. FEBRUARY 08, 2006. FEBRUARY 08, 2006. P.C: P.C: P.C: 1. Heard the learned advocates for both the parties. Perused the record. 2. Rule. Rule returnable forthwith. 3. This petition is preferred by the agrreived plaintiff against the order passed by 3rd Jt. CJJD, Kolhapur dated 16-8-2005 whereby application filed by the defendant tenant below Exh. 106 was granted and the plaintiff was not allowed to examine the witnesses in support of his case in the course of evidence, pending trial. :2: 4. The Petitioner/plaintiff has filed the suit against the defendant tenant for eviction under the provisions of the Bombay Rent Act, interalia claiming the possession for his bonafide requirement for personal use and occupation of the premises. In the course of the trial, an application was made on bahalf of the defendant seeking assistance of the court to discard the affidavit of evidence of Plaintiff’s witness under the provisions of section 135 of the Indian Evidence Act read with section 151 of the Civil Procedure Code. After hearing both the parties, the learned trial Judge was of the view that the application did involve merits and it was likely that the witness was in collusion with the plaintiff himself and therefore his evidence need not to record at all. It was also held that no multiplicity of evidence was required to be allowed and as such examination of the said witness came to be refused. 5. At the outset it may be noted that the application which was made under section 135 of the Indian Evidence Act gives discretion to the court in order to record the evidence of witnesses relating to the trials to be conducted. The provisions of order 18 of CPC also regulates the examination of the witnesses and order thereof in the course of the trial. However, in my :3: considered view, both the provisions are not applicable to the present case. In the sense that the application is allowed whereby the affidavit of evidence is discarded by the trial court refusing the witness concerned to enter in the witness box only on unsustainable ground to the effect that there was a possibility of collusion between the plaintiff and the witness. It is significant to note that the witness who was intended to be examined was one Rafiq, son of Plaintiff himself and wanted to enter in the witness box, in support of his father’s evidence regarding bonafide requirements as well as to justify the need of the family including himself of the suit premises. In view of this aspect by any stretch of imagination, it cannot be said that any undue collusion between the plaintiff and his son, who was supposed to be his witness in corroboration of his own evidence and also to justify his own plea. 6. There was also no question of avoiding multiplicity of evidence because it is evident that the witness Rafiq wanted to justify to be his own needs, who is also family member, residing with the plaintiff himself. Under the circumstances, I am satisfied that the discretion contemplated by section 135 of the Evidence Act has not been judiciously exercised and the order appears to be not only arbitrary but totally :4: illegal under the circumstances. Suffice it to say therefore that the order passed by the trial court under section 135 of the EvidenceAct below Exh. 106 in the said pending trial is illegal and therefore liable to be set aside. 7. In the result, the petition is allowed in terms of prayer clauses (a) and (b). The trial court is directed to record the evidence of the concerned witness and to proceed with the trial according to law. Rule is made absolute accordingly. C.C. expedited. ...