1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7962 OF 2008 Pundlik Tukaram Satam Petitioner versus Smt.Seema Narayan Satam and another Respondents H.S.S.Murthy i/by V.K.N arkar for petitioner. A.A.Kumbhakoni a/w T.R.Yadav i/by Ms.Seema Chopda for Respdt.no.1. Ajit Salvi for respondent no.3. CORAM : A.S.OKA, J. DATE : 21st April 2010 PC : 1. The submissions of the learned counsel appearing for the parties were heard on the earlier date. The petitioner is the first defendant and the first respondent is the original plaintiff. The second respondent is the original second defendant. The third respondent is the third defendant. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 30th June 2008. The first respondent has filed a suit for partition and separate possession. The petitioner and the second respondent (second defendant) filed a common written statement and have engaged a common advocate. A prayer was made by the second respondent to file a separate written statement which was rejected by the Trial Court. After recording of the evidence of first respondent, the second respondent examined herself by filing an affidavit in lieu of examination-in- 2 chief. After cross examination of the second respondent was made, an application was made by the petitioner seeking permission to cross examine the second respondent on the ground that in the cross examination of second respondent made by the first respondent, she has made statements which are adverse to the interest of petitioner. The said application has been rejected by the impugned order. 2. The learned counsel for the petitioner submitted that there is a common written statement of the petitioner and the second respondent on record of the suit. The learned counsel pointed out that earlier an attempt was made by the second respondent to file a separate written statement which was not permitted by the Trial Court. The learned counsel submitted that in the examination-in-chief, the stand taken by respondent no.2 was consistent with the written statement but while she was being cross examined by the first respondent-plaintiff, she deposed contrary to the stand taken in the examination-in-chief and she deposed something which is contrary to the interests of the petitioner and, therefore, the learned Trial Court ought to have granted the permission to the petitioner to cross examine the second respondent. 3. I have given careful consideration to the submissions. As the position stands today, the petitioner and second respondent have filed common written statement. In the impugned order, the learned Trial Judge has noted that the petitioner adduced evidence by examining a witness. When permission was sought by the second respondent to cross 3 examine the petitioner’s witnesses serious objection was raised by the petitioners and the Trial Court did not permit the advocate for the second respondent to cross examine the witnesses examined by the petitioner. It is noted in the impugned order that after the affidavit in lieu of examination-in-chief was filed by the second respondent, the advocate for the petitioner was called upon to cross examine the second respondent. However, the learned advocate declined to cross examine the witnesses and stated that if required, he will cross examine the second respondent after the cross examination of the plaintiff was over. 4. It must be stated here that it is not in dispute that the affidavit in lieu of examination-in-chief of the second respondent is completely consistent with the stand taken in the joint written statement filed by the petitioner and the second respondent. It appears that there are certain answers given by the second respondent during the cross examination taken by the advocate for first respondent-plaintiff which are in the nature of admissions. The said admissions may be contrary to the stand taken by the petitioner and the second respondent in the written statement. However, that is no ground to permit the advocate for the petitioner to cross examine the second respondent after the advocate for the plaintiff has cross examined her as the petitioner and second respondent have filed common written statement, an opportunity was given to the petitioner to cross examine the second respondent even before she could be cross examined by the advocate for the first plaintiff. The said opportunity was not availed of by the petitioner. Only because certain admissions are 4 given by the second respondent, now the petitioner cannot be permitted to cross examine the second respondent. 5. It is obvious that the effect of the so called admissions given by the second respondent will be decided by the Trial Court at the time of final hearing. However, no case is made out for interference with the impugned order. The impugned order cannot be said to be either perverse or illegal. Accordingly, the writ petition is rejected. No order as to costs. (A.S.OKA, J.)