(1) WP 2496.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2496 OF 2010 Karbhari Baban Mandlik, Age : 57 years, Occu.: Agri., R/o Chapryacha Mala, Behind Nehru Garden, Sangamner, Dist. Ahmednagar PETITIONER VERSUS 1. Meena Bajirao Abhang, Age : 51 years, Occu.: Agri. 2. Bajirao Godaji Abhang, Age : 56 years, Occu.: Service, Both R/o Savtamali Nagar, At Post & Tq. Sangamner, District Ahmednagar 3. Arun Madhavrao Pund, Age : 51 years, R/o Pund Mala, At Post and Tq. Sangamner, District Ahmednagar 4. Subhas Balabhau Londhe, Age : 41 years, Occu.: Agri., R/o Sakur, Tq. Sangamner, District Ahmednagar 5. Sugandhrao Kisanrao Deshmukh, Age : 57 years, Occu.: Agri., R/o Dhandarphal (Bk.), Tq. Sangamner, Dist. Ahmednagar 6. Chhaya Sanjayrao Deshmukh, Age 37 years, occu.: Agri., R/o Suvidha Housing Society, At Post & Tq. Sangamner, District Ahmednagar (2) WP 2496.2010 7. Dhanjay Raosaheb Walunj, Age 45 years, Occu.: Agri., R/o Navprerna Society, Maldad Road, At Post & Tq. Sangamner, District Ahmednagar RESPONDENTS ..... Mr. S.T. Shelke, Advocate for the Petitioner. Mr. S.K. Shinde, Advocate for the Respondent nos. 1 and 2. ..... CORAM : V.R. KINGAONKAR, J. DATED : 25TH JANUARY, 2011 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned Advocate for the parties. 2. The petitioner is original defendant in Suit (Special Civil Suit no. 58 of 2005). He challenges order dated 25.11.2009 rendered by the learned Civil Judge Senior Division, Sangamner on an application filed by the respondent vide exhibit 81. 3. The dispute lies in a short compass. The respondents (plaintiffs) filed an affidavit in lieu of examination in chief. The affidavit of plaintiff no.2 Bajirao Abhang was filed on 22.9.2008. The cross-examination of the plaintiff no.2 was scheduled (3) WP 2496.2010 on 20.10.2008, however, the Advocate for the petitioner was not present and, therefore, it was adjourned. The cross-examination of the plaintiff no.2-Bajirao Abhang was conducted on 14.11.2008. Application was thereafter moved on the same date by the respondents (plaintiffs) for recalling of the plaintiff no.2 in order to record his examination-in- chief. Though the petitioner objected such course sought to be adopted by the respondents, yet the objection was repelled and the application was allowed. 4. The core question involved in this Petition is whether further examination-in-chief could be allowed in the midst of the cross-examination of a witness? 5. The due procedure for examination of a witness is set out in Chapter "X" of the Evidence Act, 1872. Section 138 of the Evidence Act reads as follows:- "138. Order of Examination: Witnesses shall be first examined in chief, then (if the adverse party so desires) (4) WP 2496.2010 cross-examined, then (if the party calling him so desires) re-examined. . The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination in chief. Direction of re-examination: The re-examination shall be directed to the explanation of matters referred to in cross- examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross-examine upon that matter. 6. Perusal of section 138 of the Evidence Act would make it manifestly clear that once the cross- examination of a person is conducted then there is no stage for again calling the witness to record his examination in chief. The Court may however permit re-examination of such a witness if it relates to explanation of the matters referred to in the cross- examination or, in the discretion of the Court, if new matter is required to be introduced in such re- examination. The purport of the application filed by the respondents was that certain receipts were to be (5) WP 2496.2010 proved but could not be referred in the examination in chief. This can be done, if it is so permissible, only by way of examination in chief. In any case, while the cross-examination of the witness was not yet completed and stage of re-examination had not reached, it was impermissible to allow the witness to be recalled for recording of further examination in chief. The sequence as contemplated under section 138 of the Evidence Act has to be followed in order to maintain the discipline in recording of the evidence. Otherwise it is possible that there will be examination in chief, a part of cross-examination and again a part of examination in chief, again part of cross-examination and so on and so forth with the recycling of such stages. 7. Considering the patent illegality noticed from the impugned order, the same is liable to be interferred with. Hence, the Petition is allowed. The impugned order is set aside. The respondents are however at liberty to apply for re-examination in chief after cross-examination of the witness is completed and such application shall be decided on (6) WP 2496.2010 its own merits by the trial Court. Rule is accordingly made absolute. Petition disposed of. No costs. Sd/- [V. R. KINGAONKAR, J.] arp