1 wp1599-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1599 OF 2011 Anand Govind Panse ... Petitioner Versus Laxman Govind Panse and others ... Respondents Mr. A. M. Joshi, for the petitioner Mr. Jaydeep S. Deo for respondent no.1 CORAM : R. Y. GANOO, J. DATED : 22nd September, 2011 P.C. 1. Heard learned counsel of both the sides. 2. The petitioner is a defendant in the suit filed by respondent no.1 in the Court of Civil Judge, Senior Division, Pune, being Suit No. 480 of 1995. The learned Civil Judge, Senior Division, framed as many as four issues, to be tried as preliminary issues. Two of the issues are on page 84 and two are on page no. 85 of the petition respectively. In order to complete the job of recording evidence, so far as these four issues, the respondent no.1 had filed his affidavit of evidence. Objection was raised to the said affidavit of evidence on the portion pertaining to the merits of suit by filing application Exh.96. The learned IInd Additional 2 wp1599-11 Judge, Small Causes Court, Pune by order dated 6th August, 2007, allowed the said application and respondent no.1 was directed to file fresh affidavit of examination-in-chief in respect of the preliminary issues. Duly affirmed affidavit was filed on 18th July, 2008. The petitioner again raised objection to the said affidavit and this is how the learned Civil Judge, Senior Division was called upon to pass the order dated 13th January, 2011, below Exh.136. Learned Civil Judge, Senior Division rejected the objection raised by the petitioner, against which the petitioner has come before this Court. 3. I have considered the entire record. I have also noted the parameters of the present suit as well as the four issues which are on page Nos. 84 and 85. 4. In my view, it was not open for the learned judge to look into the evidence affidavit filed by the respondent No.1 and decide whether portion thereof is relevant or not to decide the issue before him. He, for the reasons mentioned in the order, as stated earlier, come to the conclusion that new affidavit is required to be filed. The respondent no.1 accepted that suggestion and thereafter, the respondent no.1 applied his mind and prepared a new evidence affidavit. The learned counsel for the petitioner submitted that portion of the said affidavit is relating to 3 wp1599-11 certain factual aspects, which are beyond the scope of these four issues and and hence, according to the learned advocate for the petitioner, evidence affidavit dated 18th April, 2010 is in excess of requirement to prove the four issues. Learned Advocate for the petitioner took me through the impugned order dated 13th January , 2011, by which his application at Exh.136 was rejected. 5. Learned Advocate for the petitioner relied upon the judgment in the case of Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd., reported in (2004) 1 Supreme Court Cases 702 and drew my attention to para 33 of the said judgment. If this judgment is being cited by the petitioner, in my view, it does not help the petitioner, inasmuch as the Supreme Court in Para 33, has clearly indicated the defendant may, in a situation similar to the one which is appearing in the present suit, place on record his objection and thereafter ask question to the witness in cross examination. The petitioner, no doubt, has placed his objection. However, the petitioner has chosen to challenge the order dated 13th January, 2011. In my view, the petitioner had enough chance to ask question in the cross examination. Similarly, the Court conducting the trial is well empowered to put the witness under control, in order to see whether evidence relevant to the points which are to be 4 wp1599-11 decided are brought before the Court. In my view, it will not be proper for this Court to peep into the evidence filed by respondent no.1 plaintiff and to ascertain whether the portion thereof is relevant to the issues to be tried by him or not. This matter matter must be left to the Trial Court. In my view, the petition is devoid of merit and hence stands dismissed. 6. As and by way of token cost, the petitioner is directed to pay cost of Rs.500/- to the Maharashtra Legal Aid committee. (R. Y. GANOO, J.)