1 appl438.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO. 438 OF 2011 Ujwala Raje Vikram Shah. .. Appellant. vs Snehalata Ghorpade & Anr. .. Respondents Mr. Zubin Behramkamdin with Mr. Karl Tamboly, Ms. Shouger Merchant i/b. Bharucha & partners. Mr. Rohit Kapadia a/w. Atit Shukla & Miss Foram Shah i/b. M/s. M.P. Vashi & Associates, advocate for respondents. CORAM: MOHIT S. SHAH, C. J. AND GIRISH GODBOLE, J 14 July 2011 P.C. 1. Learned counsel for the appellant invites our attention to paragraph-8 of the order dated 11/2/2011, which reads as under : “8. The Plaintiffs have already filed affidavits of examination-in-chief of four witnesses. These witnesses shall be cross examined before the Court Commissioner one by one. After their evidence is recorded the two witnesses to whom witness summons would have to be issued shall be summoned before the Court Commissioner directly for that purpose.” The learned counsel for the appellant submits that in view of the above order dated 11/2/2011 by which affidavits of examination in chief of the plaintiffs were taken on record, the defendants have 2 appl438.11 right to cross-examine the plaintiffs before the defendants begin to lead their evidence. 2. Mr. Kapadia, learned senior counsel for the plaintiffs states that as already indicated by the learned trial Judge in the impugned order dated 9/6/2011, the plaintiffs are going to examine attesting witnesses first and thereafter examine the other 3 witnesses and that the plaintiffs will examine themselves only in rebuttal, if required. Mr. Kapadia, learned senior counsel therefore states that the plaintiffs are ready not to rely upon their affidavits of examination in chief with liberty to file affidavit in rebuttal, if required. In short, Mr. Kapadia states that the affidavits in lieu of examination in chief of the plaintiffs will not be relied upon and if affidavits for rebuttal are filed, the defendants will get an opportunity to cross-examine the plaintiffs. 3. In view of the above statement, we dispose of this appeal after recording the above statement and permit the plaintiffs not to rely upon their affidavits of examination in chief with liberty to file affidavits for leading any evidence in rebuttal but such affidavits or oral evidence of the plaintiffs will not be taken into consideration unless the defendants get an opportunity to cross examine the 3 appl438.11 plaintiffs. Since this order is passed by consensus of the learned counsel for the parties, this order will not be cited as a precedent. It is also clarified that we have not gone into the questions of maintainability of the appeal. Parties to act on the authenticated copy of this order. CHIEF JUSTICE GIRISH GODBOLE, J