1 fa1662 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1662 OF 2009 Mangesh Prabhakar Naik & Ors. ...Appellants vs. Ashwin Ankush Gawade ...Respondent Mr.Sudhir Prabhu for the appellants Mr.Karan Thorat i/b Khandeparkar & Associates for the respondent CORAM : A.S.OKA,J. DATE : AUGUST 11, 2011 P.C.: 1 Heard the learned counsel for the appellants and the learned counsel for the respondent. Taken up for final disposal. 2 The appellants are the defendants and the respondent is the plaintiff. A suit filed by the respondent has been decreed by the Trial Court. The trial Court has recorded that the appellants did not file written statement and therefore, an order was passed on 21st April 2008 on Exh.1 that the suit will proceed without written statement of the appellants. It is reflected from the impugned Judgment and Order and from the record of the suit that suit was kept for recoding of evidence of the respondent. The respondent filed her own affidavit in lieu of examination-in-chief. However, the respondent was not at all examined on oath. The Court has treated the affidavit as evidence of the 2 fa1662 respondent. Unless formal evidence of the respondent was recorded, affidavit could not have been read as the examination-in-chief. Moreover, the original documents were not produced by the respondent. In view of this lacuna, relying upon the the affidavit, the Trial Court could not have passed the impugned Decree. Therefore, the decree deserves to be set aside with liberty to the respondent to step into witness box for recording her formal examination-in-chief. 3 The learned counsel for the appellants prays that the appellants may be granted permission to file written statement. The appellants will have to apply to the trial Court and make out a case for extension of time to file written statement in accordance with law. 4 Hence, I pass the following order : i) Impugned Judgment and decree dated 31st July 2009 is quashed and set aside and the Special Civil Suit No.77 of 2007 is restored to the file of the Trial Court. ii)It will be open for the respondent to step into witness box for recording her examination-in- chief. It will be open for the respondent to file original documents on record of the suit. iii)It will be open for the appellants to apply to the Trial Court for grant of permission to file the written statement. However, all contentions of the parties on merits of such application are kept open. 3 fa1662 iv)The Trial Court will decide the suit expeditiously. v) Appeal is partly allowed on above terms with no order as to costs. vi)Civil Application no.4277 of 2009 does not survive and the same is disposed of. vii)Record and Proceedings be forthwith transmitted to the Trial Court. JUDGE