( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7188 OF 2010 Executive Director, Godavari Marathwada Irrigation Development Corporation, Aurangabad and others. PETITIONERS VERSUS M/s D.P. Kedar and brothers and others RESPONDENTS .... Mr. S.G. Sangle, advocate for the petitioners. Mr. P.R. Nangare, advocate for the respondent No. 1. Mr. S.V. Kurundkar, Additional Govt. Pleader for the respondents No. 2 and 3. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 13th August, 2010] PER COURT : 1. Heard learned counsel for the parties and learned Additional Govt. Pleader. 2. The challenge in this petition is to order rendered by learned Civil Judge (S.D.), Sangamner on an application (Exh-31) in Special Civil Suit No. 1/2008. By that order, the trial Court allowed the respondent/plaintiff to examine a witness by name Shri D.P. Shekdar, a retired Assistant ( 2 ) Geologist of Geology Division, Central Design Division, Nasik. According to the petitioner, such order could not have been passed in view of the primacy that is to be followed under Order-XVIII Rule-3A of the Civil Procedure Code. 3. Learned counsel for the petitioner would submit that the examination of the witness before the plaintiff entered the witness box is rather anachronism which can be avoided and that was an attempt to fill up the gaps. He would submit that the trial Court has not recorded valid reasons in support of the impugned order so as to give go-bye to the normal procedure of asking the plaintiff to first enter the witness box. I find it difficult to countenance the argument. First, the respondent/plaintiff sought examination of the witness only as an expert on the question of the quality of the rock and the available genealogical foundation at the place of work. The plaintiff sought recovery of amount in excess of what has been paid for the reason that he was subjected to fraud and under duress, he had given acknowledgement of receipt of the amount towards and final settlement of the account. The trial Court is required to frame such issue whether the plaintiff was misrepresented or was subjected to any duress or any fraud was committed on him, if details of ( 3 ) the pleadings are sufficient to raise such issue in view of Order-VI Rule-4 of the Code of Civil Procedure. However, that is another aspect of the matter and if there is no such material, the Court may out-rightly reject the claim or may treat such issue as a preliminary one if it is noticed that the suit is filed without any cause of action. Still, however, mere permission to examine a retired geologist, prior to the plaintiff, cannot be treated as perverse exercise of the judicial discretion. The trial Court has assigned certain reasons while granting such permission. It is observed that this is a fit case in which the plaintiff can be permitted to examine the witness earlier to his examination. It may be that no elaborate reasons are recorded, but one cannot be oblivious of the fact that such examination of an expert witness prior to the examination of the plaintiff is not likely to impair the defence of the petitioner. All along, the petitioner asserted that the land was of soft soil and what has been stated in the tender notice is the true position whereas the plaintiff has tried to give incorrect and untrue reasons for the delay caused in execution of the work and the amount claimed by the plaintiff is highly excessive. These issues of the facts can be sorted out during the course of trial if the plaintiff has cause of action to claim excessive ( 4 ) amount and if the suit is found maintainable inspite of the agreement of the arbitration. All the questions are kept open. The impugned order permitting the examination of the witness, however, is not proper in view of the circumstances of the matter. Reference is made to “Hari Shrawan Sutar v. Ramdas Tukaram patil” 1985 (2) Bom.C.R. 290. A Single Bench of this Court held that the provisions of Rule 3-A of Order- XVIII of the rule are salutary and intended to be applied as such so as to achieve the object thereof. It is observed that the Rule itself confers jurisdiction upon the Court to change such modality for the reasons to be recorded and permit such a party to be examined at a later stage. It is also, however, held that the purpose of the Rule appears to have the evidence of the party first. In case it is found that the party intentionally wants to duck himself/herself with ulterior motive, particularly, with a view to fill up the lacunae which may be found in the testimony/ies of the witness/es and there is ill-motive behind such a strategic move, then ofcourse the trial Court may refuse to exercise the discretion of allowing the party to remain behind and examine the witness in the first place. That is not the fact situation in the present case. In this view of the matter, no interference is warranted and, therefore, the petition is dismissed. No ( 5 ) costs. The trial Court shall expedite the final hearing and if separate application is filed by the petitioner regarding framing of additional issues in respect of the fraud or duress or maintainability on account of arbitration, then it may be considered. [V.R. KINGAONKAR] JUDGE NPJ/wp7188-10