{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2480 OF 2009 Sambha Trimbakappa Girwalkar PETITIONER VERSUS Abdul Gani Khalrulla Choudhari & others RESPONDENTS ....... Mr.S.V.Natu, Advocate for petitioner Mr.K.S.Bhore, Advocate for respondent No.1. ....... [CORAM : A.V.POTDAR, J.] DATE : 23rd June 2009 PER COURT: 1. Previously, this Court has passed an order to issue notice to respondents No.2 and 3 and within meantime there shall be interim stay to the proceedings pending before the lower court. At the same time, an opportunity was given to respondent No.1 to file affidavit in reply. Today, learned advocate for petitioner states that as the matter was not reached to the office, the notices to respondents No.2 and 3 could not be served. Respondent No.1 has also not field affidavit in reply and according to Mr.Bhore, it is not necessary to file affidavit in reply, in view of Full Bench Judgment {2} reported in 2008 (6) Mh.L.J. 887 in the matter of “Hemendra Rasiklal Ghia V/s Subodh Mody”. The matter was referred to the Full Bench about the exact stage at which objection could be raised about admissibility of document during the trial as well as objection to the admissibility or relevancy of the evidence in respect of contents of the affidavit of evidence, filed in lieu of evidence, filed under Order 18 Rule 4 of the Civil Procedure Code. 2. Heard learned counsel for the parties. 3. Factual matrix of the matter can be summarized as follows - The petitioner has filed a suit simpliciter for injunction against the very respondents way back in the year 1978 bearing RCS No.80/1978. The said suit ended in compromise on 14.04.1978 and accordingly a compromise decree came to be passed between the parties to the suit. It appears that latter on, in the year 1993, second suit bearing RCS No.578/1993 came to be filed by the very plaintiff, who is petitioner, on the fresh cause of action. This suit was filed on 05.11.1993. The respondent appeared in the suit and filed written statement and vide separate application u/s 151 of the Civil Procedure Code, prayed for review of the judgment and decree passed in RCS No.80/1978 dated 14.04.1978. It further appears that say was filed by the petitioner- opponent in the said application/review petition. On the basis of say filed by the present petitioner and the contentions raised in the {3} review petition, issues came to be framed below Exhibit-1 on the point of maintainability of the review petition and whether the respondent is able to prove that decree passed in RCS No.80/1978 has been secured by practicing fraud. It further appears that affidavit of evidence was filed in the said review petition of which copy is annexed at page 48-50. This affidavit came to be filed on 11.06.2007 i.e. after the amendment was introduced to the Civil Procedure Code in the year 2002 whereby procedure was introduced to examine witnesses by way of filing affidavit to that effect, as provided under Order 18 Rule 4 of the Civil Procedure Code. Subsequent to the filing of the affidavit of examination in chief, as stated above, on 11.06.2007, an application came to be field by the present petitioner, who is the opponent in the review petition, to struck down the facts deposed in para No.2 to 7 of the examination in chief. After hearing both the sides, the third Joint Civil Judge, Junior Division, Latur, by his order dated 02.02.2009, rejected the application (Exhibit-99) and the said order is impugned in this petition. 4. During the course of arguments, my attention is drawn by learned counsel appearing for the petitioner towards the contents of the affidavit of evidence. According to him, the contents of para 1 and 2 are matter of record, at the same time the contents of para 4 onwards are in respect of sale deed and not in respect of how the fraud was played on by the parties interse, to secure {4} decree in RCS No.80/1978, subject matter of review petition. In reply to this submission, my attention is drawn by learned counsel for respondent No.1 towards observations of the Full Bench referred supra. For clarity, it requires to be reproduced, which reads as under- “So far as Question-B relating to the stage at which objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII, Rule 4 of Civil Procedure Code is no more res integra in view of the three Judge Bench judgment of the Apex Court in the case of Ameer Trading Corpn. Ltd., wherein the Court ruled as under- “If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross-examining him. The defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open Court...” “The objection to the admissibility or relevancy {5} of evidence contained in the affidavit of evidence filed under Order XVIII, Rule 4 of Civil Procedure Code can be admitted at any state reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. V/s Shapoorji Data Processing Ltd.,” 5. After going through the observations of the impugned order, the observations of the judgment of the Full Bench find place in para 18 and 19. It is observed that the objection to the admissibility of evidence contained in affidavit of evidence filed can be admitted at any stage reserving its resolution until final judgment in the case. It is observed in the impugned order that prayer of the petitioner, to struck down or delete the portion, which according to him is irrelevant to decide the issue, is not finally decided, however, the right of the petitioner is reserved till final decision in the matter, and if it is so, then the right which is vested in the petitioner is not finally turned down by the trial court vide the impugned order, however the matter is still kept open till final decision in the matter. In the premise, to entertain the present petition as it is will be premature entertainment of disputed question as to whether in reality the opportunity was denied to the petitioner. As the opportunity was not denied, but venue is kept open to argue on this point and to decide this point at the time of final judgment in the review petition, in the premise, no fault can be found in the order impugned in this petition. The writ petition, which is devoid of any merit is rejected in liminie at the stage of {6} admission itself. Considering the fact that the original suit is of the year 1993 in which review petition is filed, the trial court is hereby directed to hear and dispose of the same as expeditiously as possible. [A.V.POTDAR, J.] drp/wp2480-09