1 WP 5574/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5574 OF 2010 Naimuddin Sarfuddin Khan .. Petitioner V/s Narendra Purshottambhai Umarao .. Respondent Mr. Indu Prakash i/b Mr. C.K. Tripathi for the petitioner. CORAM : D.G. KARNIK, J. DATE : 13TH AUGUST 2010 P.C. : 1. Heard. 2. By this petition, the petitioner challenges the three orders dated 21 January 2010, 23 March 2010 and 30 April 2010 passed on the applications at Exhibit 215, 217 and 230 respectively in R.C.S. No.20 of 2005 pending before the learned Civil Judge, Junior Division, Murud. 3. The petitioner is the original defendant and the respondent is the original plaintiff. After the closure of the evidence of the plaintiff, the matter was adjourned for recording of the evidence of the petitioner. It appears that on that date the petitioner 2 WP 5574/10 sought to examine a witness before his own evidence was recorded. The respondent, therefore, made an application at Exhibit 215 inviting the attention of the Court to the provisions of Order 18 Rule 3A of the Code of Civil Procedure (for short “the Code”) pointing out that the plaintiff must examine himself before any witness. By an order dated 24 January 2010, the application was allowed. Instead of filing an application for review and/or challenging the order before the superior court, the petitioner made a separate application (Exhibit 217) for permission to examine another witness before him. Obviously, this application (Exhibit 217) was misconceived since there was already an order passed by the Court directing the petitioner to examine himself before any witness. Learned counsel for the petitioner submitted that this application was made on the same day on which the order was passed on Exhibit 215 and before the order was pronounced. Assuming this to be the case, still the application became infructuous the moment order was passed on Exhibit 215 directing the petitioner to examine himself first and before any other witness. Thereafter the petitioner made an application purporting to be under Order 26 Rules 4 and 5 of the Code for examining himself on commission on the ground that he was in United States on business. That application has also been rejected. It may be noted that under 3 WP 5574/10 the amended provisions of Order 18 Rule 4 of the code, examination in chief of a witness is to be recorded on affidavit. The petitioner had not filed any affidavit in lieu of examination in chief. He wants his examination in chief to be recorded by the Court Commissioner which the Court has rightly rejected. It may be noted that the defendant is a citizen of India and the suit relates to an injunction restraining the defendant from making any construction on the property situated in India. There is no reason why the petitioner cannot file affidavit in lieu of examination in chief and come to India for the purpose of cross examination if, according to him, he is constructing a structure in a property in India and is being obstructed. In any event, there is no reason to interfere in the discretion exercised by the trial court in refusing to appoint a Court Commissioner. 4. As regards the initial order passed by the learned trial Judge allowing the respondent’s application at Exhibit 215, the order cannot be faulted with as it is in consonance with Order 18 Rule 3A of the Code. 5. There is no merit in the writ petition which is hereby rejected summarily. The petitioner is granted time of 4 weeks to file affidavit in lieu of examination in chief and thereafter 4 WP 5574/10 remain present in the trial for the purpose of cross examination on a date to be fixed by the trial court. (D.G. KARNIK, J.)