1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2387 OF 2008 Mr. Dinkar Dhaygave .. petitioner -versus Army Welfare Co Op Hsg Society .. Respondents. Mr. A. M. Joshi, for the petitioner. Mr. A. P. Vanarase, for respondent. CORAM: A.S. OKA, J. DATED:25 th September, 2009. P.C. 1. Heard learned counsel appearing for the petitioner. The petitioner is the original defendant. The challenge in this petition under Article 227 of the Constitution of the India is to the order passed on the application made by the petitioner at exh.47. 2. The petitioner-defendant was allowed to amend written statement. As a consequence of the amendment, the Trial Court permitted the respondent-original plaintiff to lead additional evidence and an affidavit in lieu of 2 evidence was filed by respondent by way of additional evidence. The Application at exh.47 was made for raising an objection to the said additional affidavit in lieu of evidence with a prayer that the same be rejected. The said application was rejected by the Trial Court. The advocate for the petitioner declined to cross examine the said witness and therefore, cross examination of the said witness was closed. On the very day the advocate for the petitioner filed a pursis recording what according to him transpired before the Trial Court. The relevant part of the said pursis reads thus, “The Defendant therefore filed an application at Exh.No.47, the Hon’ble Court without calling say of the plaintiff and without giving proper opportunity to the defendant to conduct hearing of the said application directly rejected the said application immediately on filing. The defendant says that today ie on l8.01.2008, the defendants advocate brought the notice of the Hon’ble Court that the mischief committed by the plaintiff. The defendants advocate submitted that the said additional evidence affidavit needs to be discarded as prayed in Exh. No.47. However, the Hon’ble Court was in no mood to consider the submission of the defendants advocate. The Hon’ble Court insisted that cross examination should be conducted immediately. 3 In the event the said cross was conducted as per the courts direction then it would be against the interest of the defendant. The Hon’ble Court was pleased to decline the cross examination. Hence this pursis. The defendant is filing this pursis immediately to record proceeding and conduct which took place in the Hon’ble Court. 3. Various submissions have been made by the learned counsel appearing for the petitioner. He submitted that only an accidental error was corrected by the petitioner by carrying out amendment to the written statement. The additional evidence which could have been led by the respondent ought to have been confined to the amendment carried out. He placed reliance on certain decisions of the Apex Court. 4. I have considered the submissions. The first prayer in the petition is for setting aside the order below exh.47. The second prayer is for setting aside the order of “no cross”. As far as order below exh.47, is concerned, it is purely interlocutory order and no interference can be made with the said order at this stage when the affidavit in lieu of evidence of the witness has already been taken on record. At this stage the trial Court cannot be directed to discard the said affidavit. Additional examination in chief of the 4 said witness has been already recorded affirming what is stated in the affidavit. If at all the petitioner is aggrieved, he will have to challenge the said order in an appeal which may be preferred against decree passed in the suit. 5. So far as the permission to cross examine the witness is concerned, the advocate for the petitioner himself declined to cross examine the witness as is recorded by the learned Judge in the deposition. Explanation sought to be given by the advocate by filing a pursis was that the petitioner was desirous of challenging the order passed below exh.47. An application could have been made by the petitioner for seeking time to challenge the said order by approaching higher court. Even in the pursis advocate has not stated that he sought time to move the higher court. Instead of following the legitimate procedure by applying for time, the advocate for the petitioner has chosen to make a bold statement that he does not want to cross examine the witness. In the pursis, the advocate has stated that if cross examination was conducted, it would have been against the interests of the petitioner. The proper approach should have been to apply before the Trial Court for grant of time to enable the petitioner to move this Court, but that was not done. 5 6. Considering aforesaid circumstances, this is not case where this Court should normally interfere and grant permission to cross examine the witness. The petitioner could have applied before the Trial Court for permission to cross examine the said witness. 7. It is obvious from the pursis filed by the advocate that the advocate declined to cross examine the witness. The petitioner had not instructed the advocate not to cross examine the witness. The additional affidavit in lieu of evidence will remain on record and therefore, interests of justice will be served if the petitioner is granted an opportunity to cross examine the siad witness. However, the petitioner is required to be saddled with heavy costs. The amount of costs is quantified at Rs.7500/-. 8. Hence I pass the following order. ORDER I) The petitioner is granted permission to cross examine witness of the respondent subject to payment of costs of Rs.7500/- to the respondent. The amount to be paid within the period of 8 weeks from today. An amount of Rs.2,000/- deposited in this Court shall be 6 transferred to the Trial Court and therefore, the petitioner will have to deposit only a sum of Rs.5,500/-. II) Deposit of amount of costs with the Trial Court will be treated as sufficient compliance. Payment of costs will be a condition precedent. III)As far as the challenge to order below exh.47 is concerned, the issue is kept open with liberty to the petitioner to challenge the said order in an appeal which may be preferred against decree. IV)The petition is disposed of in above terms. (A.S. OKA, J)